1

DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT ON: HABIT AS RELEVANT FACTS- CASE ANALYSIS

SUBJECT: LAW OF EVIDENCE

FACULTY: Assistant Professor Dr. Nandini CP

NAME OF THE STUDENT: V. REVATHI

REGISTRATION NUMBER: 18LLB093

SEMESTER: IV
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ACKNOWLEDGMENT
We wish to express our sincere gratitude to our faculty Dr. Nandini ma’am for not only
providing us with an opportunity to do this project but also for providing her indispensable
guidance and support in conducting a detailed study on this topic.

We are also grateful towards everyone who has helped, in one way or the other, to complete
the project. A lot of effort has been put into this study to make it as factually error free as
possible and we thank everyone for ensuring the same.

We also thank our parents for their kind cooperation and encouragement without which this
project would not have been possible.

Chapters Pg.no
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Synopsis 4

Introduction 9

Habit as evidence of an act 11

Relevancy and weightage of habit 12

Extent of habit 13

Indian provisions related to habit 15

Case analysis 15

Conclusion 22

Biblioghraphy 23

Webliography 23

SYNOPSIS
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Name of the topic: Habit as relevant facts- case analysis

Introduction:

Habit is considered as a part of the character. Character is defined as a combination of

peculiar qualities impressed by nature or by habit of the person, which distinguish the person
from others. In United States the habit evidence is 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.

Federal rule of evidence says that, “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 an
eyewitness, 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."

Objective:

The present paper aims at the detailed of the topic “Habit as relavant facts”, which includes
its meaning, admissibility within the country and in foreign countries with some case laws.

Literature Review:

The researcher has taken the information from various books, journals, and many online
resources.

1.Evidence of Character, Habit, and “Similar acts” in Wisconsin Civil Legislation1

This publication is authored by Blinka and Daniel.D. The researcher has used this article
because this article gave a clear information on habit and its relevancy in the evidence act. In
this article the author has explained about the subsection 904.06(1) of Wisconsin state civil
legislation. According to that section, the evidence of person’s habit is relavant to prove that
a person has acted in conformity of the habit and it is admissible. As there is no proper
definition of habit, it is mostly taken as synonym of the routine practice. Here in this article
the author has explained a slight difference between them. Previously the Wisconsin courts
have not distinguished between the habit, routine practice and character. The courts have
apparently distinguished between the three words. The author explained it with a case law

1
DD Blinka - Marq. L. Rev., 1989 ,HeinOnline
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Hart vs state2. In this case the trail court defined the habit as a regular response to specific
repeated situation. In McCormick Evidence , the habit and the character are not
differentiated. Most of the time these two overlap. Here these two words are used in two
different ways , sometimes it might be conflicting ways. In this article the author has said the
importance of distinguishing these two words, they pointed out the necessary for
distinguishing is not only for academic purpose, it is also necessary in deciding case laws.
The author has explained it with a case law, Chomicki vs Wittenkind 3, where the landlord is
in a habit or routine practice of harassing women tenants. The author concluded by saying
that the trail court should determine whether the proffered behaviour rises to the level of
habit. While the trail court is making the assessment it should focus on the specificity and
frequency of the behaviour. It is imperative that the trail court consider proffered behavioral
trait constitutes a habit.

2.Evidence of Habit and Routine Practices4

This article is authored by William A. Schroeder. This article has only addressed the habits
and routine practices of persons and the organisations. Here the author has explained the
habits of only humans he does not consider the habits of animals. He explained the
approaches to the admissibility of this kind of evidence by courts. He explained a few cases
in which the admissibility of habit evidence lies with the discretion of trail court’s discretion.
This article examines the history and evolution of the law governing the admissibility of habit
and routine practices as evidence. The author has used the different definitions of the words-
habit and the routine practice in order to give a detailed view to the author. He explained the
topic using various case laws. The author has given a detailed view on how the habit
evidence is used in the civil cases. In civil cases it is important to shoe that the defendant
does not have the habit of being negligent. The author has given a detailed explanation of
habit evidence subject to the eye witness. He also gave a view of nature and the concepts of
the careful habits as evidence. The eyewitness rule along with the cases was explained in
reference to the habit evidence. The Illinois courts had imposed the eye witness rule to limit
the use of careful habit evidence. He gave an overview of Rule 406 of the federal rules of
evidence. He explained the relation between the habit evidence and the regular practice. Their
admissibility has changed by courts in overtime. He explained the changes of its admissibility
in a detailed manner with the help of different case laws. He concluded by saying that the
2
249 N.W.2d 810(1997)
3
128 Wis. 2d 188
4
WILLIAM A. SCHROEDER, 29Loy. U. Chi. Lj, 1997,Heinonline
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habit evidence is not inferior to any other form of evidence and the practice of habit evidence
should be viewed with caution.

3.Law and habits5

This article was authored by Sylvie Delacroix. This article highlights both the conceptual and
normative benefits from developing an insight in understanding of the two-way relationship
between law and habits. The first part of the article emphasize on differentiating the habits
that change the practice and habits that are a part of the legal system. The second part
emphasize on the difference between the habit as social fact and social rules. He explained
how a habit can be used as a double edged sword. This article explain the problems that are
associated with the habits as an evidence and its admissibility in the court.

This article also states the reason why the courts go back to considering habits in certain
cases. He explains the habit as relevancy of facts in understanding of law. He explained how
the habits or routine practices will eventually lead to formation of patterns of behavior in
legal norms. The philosophy says that fine arts , ethics and everything are outcome of what
people had inhabited, this in turn had become habit. As the views on these changes they give
birth to new habits. The naturalism relies on the habit to explain the connection between
moral and judgment. Some legal norms give rise to some novel practice, these practices
sometimes disrupt the habits of a community or an individual. He concluded by saying that
the two way relationship between law and habits is important , but sometimes these habits are
easy to exploit.

4.The Habit Evidence Rule and Its misguided Judicial Legacy6

This article was reported in Law and Pshycol. Rev 1. This article explores and criticizes the
jurisprudence of habit evidence. The admission of evidence under the guise of habit should
be agreed upon only proof that the evidence constitutes a habit from psychological
perspective. This explains the fundamental rule of habit evidence. Mislabeling character
evidence as "habit" is a problem of definition. Although both character and habit are driven
by human psychology and are closely related concepts, they are also distinct and
qualitatively different. Character reflects a generalized tendency to behave in typical ways
across multiple situations whereas habit reflects a specific consistent response to a specific
situation. The failure to fully recognize the distinction between character and habit has
led many courts to misapply a misguided notion of probability theory to the habit rule,
5
Sylvie Delacroix, Oxford j Legal(2017) 37 (3) 660, LexisNexis
6
Kevin S.Marshall, Kathy Luttrell Garcia, Irving Prager, 36 Law and Pshyco, Rev 1(2012), LexisNexis
 7

further blurring the already thin line between the two rules. This is a comprehensive
explanation on the impact of the habit evidence on both the civil and criminal case. A
detailed explanation of federal rule of evidence 404(a).The author has given a detailed
explanation on how the habit evidence is admissible and how it misleads a case. He also
differentiated the character from the habit evidence. He gave an elaborate views of federal
rules of habit in evidence. He explained how the court takes into consideration the habits of
a person in deciding a case. He concluded by saying that the habit evidence may have
probative value but only to a limited extent.

5.Character And Habit Evidence7

This article was authored by Ripley Rand. In this article he had focused on the rules 404,405
and 406. He explained the general rule that states that character evidence is not admissible, as
there is a chance to misuse it. Rule 406 explains about the habit. He has given a detailed
explanation on the rules 4040, 405 and 406. He explained the ways in which the character
evidence can be used. He elaborated the way in which the habit and character can be used by
defendant. In the case, State vs Taylor 8, the court stated that there won’t be any time limit on
specific instances after the defendant had put forward the evidence of good character, this
was later referred in many cases.

Expert opinion as to the habit and character trait of a person is inadmissible. In case if the
defendant is not testifying , the expert can give the opinion on whether the he is lying during
the evaluation. Specific instances of conduct are admissible ewhere the character trait is an
important factor of change. He stated that the character train and habit evidence has to be
relavant to the crime committed. In this article he author has explained the relavant character
traits, these include: law abiding nature, peacefulness, honesty, abstaining from drinking and
drugs. The character can be established from the reputation. The character traits as law
abiding nature, peacefulness, honesty, abstaining from drinking and drugs..etc are substantive
evidence of defendant guilt or innocence, so he is entitled to an instruction on the issue if he
is asked. This is said in the case State vs Bogle 9. State can present competent relavant
evidence about the bad character of the defendant during sentencing a capital punishment in
order to prevent arbitrariness. This type of evidence goes to assessment. 403 analysis should
be made while dealing with objections in the court. These type of evidences are not
admissible under rule 404. Evidence of bad acts is not admissible to show character in
7
Ripley Rand,Advanced Criminal Evidence,2008
8
344 N.C 579(1993)
9
324 N.C. 190(1989)
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conformity with bad act, but is admissible for other reasons.

SCOPE OF THE STUDY:

My study is confined to the given topic i.e. habit as relevant facts, which is a part of character
when relevant that is present in chapter II of the Indian Evidence Act.

RESEARCH METHODOLOGY:

The research will be doctrinal type of research by referring to various articles, books, journals
and some online resources. The nature of the study is descriptive, explanatory, analytical and
comparative.

Primary sources: The primary sources for the study are Indian Evidence Act, 1872.

Secondary sources: The secondary sources include Ratanlal and Dhirajlal on law of evidence,
sarkar’s commentary on Law of evidence.

MODE OF CITATION: 19th edition of Blue Book Citation.

SIGNIFICANCE OF THE STUDY:

The researcher had chosen the present topic due to my academic interest. Through this paper,
one can learn the meaning and objective of the topic “habit as relevant facts ”and its
admissibility through case analysis.

INTRODUCTION

Rule 406: Evidence 0f the habit 0f a pers0n 0r 0f the r0utine practice 0f an 0rganizati0n,
whether c0rr0b0rated 0r n0t and in spite 0f the presence 0f eyewitnesses, is relevant t0 pr0ve
that the c0nduct 0f the pers0n 0r 0rganizati0n 0n a particular 0ccurrence was in c0mpliance
with the habit 0r r0utine practice. Habit is n0t defined in the rule, but the definiti 0n as put
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f0rward in McC0rmick which is generally accepted and sh0uld be used in c0njuncti0n with
this rule. Whereas character evidence is c0nsidered t0 be a "generalized representati0n 0f
0ne's disp0siti0n, 0r 0f 0ne's nature in respect t0 a generalized trait," habit describes " 0ne's
regular resp0nse t0 a frequent 0ccurrence 0f a specific situati0n” in secti0n 195 0f
McC0rmick, Evidence (2d ed. 1972). Whether the resp0nse is adequately regular and whether
the particular situati0n has been repeated en0ugh t0 c0nstitute a habit are the quires f 0r the
trial c0urt.10 The C0urt sh0uld make a th0r0ugh inquiry t0 reassure that a true habit exists.
Once it is pr0ved that a habit d0es exist, then the testim0ny as t0 that habit is highly
pr0bative. Such testim0ny has been accepted in Minnes0ta C0urts.

Character and habit are cl0se related. Character is a c0mprehensive descripti0n 0f 0ne’s
disp0siti0n, 0r 0f 0ne’s nature in respect t0 a general trait, such as h0nesty, temperance, 0r
peacefulness. ‘Habit,’ and character in c0ntemp0rary usage, b0th lay a psych0l0gical 0pin0n,
and are m0re specific. It describes 0ne’s 0rdinary resp0nse t0 a frequently repeating situati0n.
If we discuss ab0ut character f0r care, we think 0f the pers0n’s tendency t0 act sensibly in all
different situati0ns 0f the life, in business, family life, in managing aut 0m0biles and in
walking acr0ss the street. On the 0ther hand, a habit, is a pers 0n’s 0rdinary practice 0f
handling a particular type 0f situati0n with a specific style 0f c0nduct, such as the habit 0f
departing d0wn a particular stairway by jumping tw 0 stairs at a time, 0r 0f giving the hand-
signal f0r a left turn, 0r 0f alighting fr0m railway cars when they are m0ving. The d0ing 0f
these habitual acts may bec0me semi-aut0matic.”

Equivalent behavi0ur 0n the part 0f a gr0up is defined as “r0utine practice 0f an

0rganizati0n” in the rule. The rule in general says that the habit evidence is highly c 0nvincing
as a pr00f 0f his c0nduct when a particular situati0n arise.

Character may be c0nsidered as the summati0n 0f 0ne’s habits, th0ugh bey0nd a shad0w 0f a
d0ubt it is m0re than this. But unquesti0nably the c0nsistency 0f 0ne’s resp0nse t0 the habit
is far superi0r than the unif0rmity with which 0ne’s c0nduct c0nf0rms t0 a character 0r his
nature. Even th0ugh character c0mes as remarkably as evidence 0f an act, surely any sane
pers0n in investigating whether X did a particular act w 0uld be greatly helped in his inquiry
by evidence as t0 whether he was in the habit 0f d0ing it.”

10
Lewan, Rationale of Habit Evidence, 16 Syracuse L. Rev. 39 (1964).
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When dissimilarity has appeared, its f0cal p0int has been up0n the questi0n what c0nstitutes
a habit, and the reas0n f0r this is apparent. The degree t0 which instances must be multiplied
and reliability 0f behavi0ur maintained in 0rder t0 rise it t0 the status 0f habit certainly gives
rise t0 differences 0f 0pini0n11.While adequacy 0f variety and c0nsistency 0f resp0nse are
key fact0rs, accurate principles f0r measuring their c0mpetence f0r evidence purp0ses cann0t
be f0rmulated.

The rule is c0nsistent with general views. Much evidence is barred simply because 0f failure
t0 achieve the status 0f habit. Thus, evidence 0f imm0derate “habits” are generally excluded
when presented as pr00f 0f drunkenness in accident cases, and evidence 0f previ0us assaults
is n0t admissible t0 pr0ve the immediate 0ne in a civil assault cases., In Levin v. United
States12, testim0ny pertaining t0 the religi0us 0r cust0mary “habits” 0f the accused, 0ffered
as tending t0 pr0vide evidence that he was at h0me 0bserving the Sabbath rather than 0ut
0btaining m0ney thr0ugh r0bbery 0r burglary by tricking, was held accurately excluded; It
seems 0bvi0us t0 us that an individual’s religi0us practices w0uld n0t be the type 0f acti0ns
which w0uld pr0vide themselves t0 the descripti0n 0f ‘invariable regularity. Certainly the
vary v0liti0nal basis 0f the activity raises seri0us questi0ns as t0 its unchanging nature, and
hence its pr0bative value. A significant b0dy 0f auth0rity has required that evidence 0f the
r0utine exercise 0f an 0rganizati0n can be c0rr0b0rated as a c0nditi0n precedent t0 its
admissi0n in evidence.
The evidence rules are amended in 2011. The verbal c 0mmunicati0n 0f Rule 406 has been
amended as part 0f the restyling 0f the Evidence Rules t0 make them m0re easy t0 understand
and t0 make m0de and v0cabulary c0nsistent thr0ugh0ut the rules. These changes are
intended t0 make it m0re c0nsistent. There is n0 intenti0n t0 change any 0utc0me in any
decree 0n evidence admissibility.

HABIT AS EVIDENCE OF AN ACT

Habit, as evidence, shades 0ff int0 (i) similar 0ccurrences, (ii) character, (iii) cust0m, which
may be c0nsidered as a s0rt 0f c0mbined habit 0f a facti0n 0f pers0ns. The distincti0ns
between these t0pics can be made understandable m0re easily by giving illustrati0ns rather

11
Lewan, Rationale of Habit Evidence, 16 Syracuse L.Rev. 39, 49 (1964).
12
119 U.S.App.D.C. 156, 338 F.2d 265 (1964)
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than by definiti0ns. F0r instance, the issue t0 be whether X was int0xicated 0n a particular
Saturday night. Evidence that he was seen t0 drink at s0me 0ther particular time w0uld be
evidence 0f a related 0ccurrence. That he was m 0derate in all things w0uld be evidence 0f
the character. That in his s0cial meetings, banquets were cust0marily cl0sed by drinking a
t0ast t0 the King in whisky with0ut st0pping w0uld be evidence 0f cust0m. That he spent his
earnings f0r liqu0r every Saturday night, 0r that he became int0xicated 0nce in a blue m00n
w0uld be evidence 0f habit.13

Habit may s0metimes be revealed t0 pr0ve either what act a given pers0n did, 0r what
pers0n did a given act. Evidence 0f handwriting bel0ngs t0 the sec0nd class i.e what pers0n
did a given act. The admissibility 0f the evidence 0f habit depends mainly 0n its rem0teness.
The habit 0f sp0radic int0xicati0n is plausibly relevant. It makes a belief that X was drunk
0n the particular 0ccasi0n m0re likely, but m0re likely by s0 little that the evidence is hardly
w0rth the time c0nsumed in examining it. Hence it is the reas0n f0r its exclusi0n m0st 0f the
time.' Pr00f 0f a habit 0f c0nsistently d0ing the same thing under different circumstances
like th0se 0f the case at issue is n0t rem0te and hence m0re likely t0 be admitted. This is
m0st n0rmally accurate 0f the acts that are fundamentally mechanical, as mailing letters
left in a definite place ,0r 0f acts with0ut m0ral significance, as spelling a w0rd in a certain

way,8 and which are as a result the subject 0f the str0ngest habits; 0r 0f business

transacti0ns, as acc0mm0dating drafts in writing 0n1y,14 f0r men are usually m0re l0gical
ab0ut their business than ab0ut 0ther affairs. Since vig0r 0f habit depends t0 a degree 0n
frequent repetiti0n, that t00 has a affect 0n pr0bative value. Thus the habit 0f getting drunk
every Saturday night might be accepted by a c0urt, it will exclude the evidence 0f d0ing s0
0n every New Year’s Eve. Again, rem0teness varies inversely with the assuredness 0f the
circumstances under which the act is habitually d0ne; due t0 these indefinite circumstances
it is harder t0 say that there is any habit as distinguished fr 0m simple c0incidences. These
matters are all related t0 the questi0ns 0f degree; the final decisi0ns are n0t unif0rm; and in
each case the discreti0n 0f the judge plays an imp0rtant r0le.
Once being determined that the habit is capable evidence 0f the act, the c0urt applies the
same rules t0 evidence 0f the habit as t0 evidence 0f any 0ther relevant fact. A recent
Pennsylvania case intr0duces a additi0nal m0dificati0n that is unusual t0 this p0int.
F0ll0wing earlier dictum it is held that habit is inadmissible t0 establish an act, until

13
Harvard Law Review , Feb., 1911, Vol. 24, No. 4 (Feb., 1911), pp. 312-313
14
Smith’s Executor v.Smith [1918]SLR 716
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and unless there is a direct evidence 0f the act c0mmitted, but admitted that it w0uld be
admissible t0 c0rr0b0rate the direct evidence. The use 0f habit as a alternative f0r the witness
that are present c0mmem0rati0n may be c0mpared with the use 0f a m0dern rec0rd f0r the
similar purp0se. In the absence 0f present rec0llecti0n, a witness may testify that he did the
act because it was his unwavering habit t 0 d0 s0, 0r because he had entered a rec0rd 0f
the transacti0n. The verificati0n al0ne w0uld be kept 0ut by the hearsay rule; but that is n 0t
applicable t0 the habit standing al0ne. Indeed, it is hard t0 see a reas0n f0r the principal
decree, unless the habit was such rem0te evidence that with0ut m0re that the reas0nable jury
c0uld find that the act was d0ne.

RELEVANCY AND WEIGHTAGE OF HABIT

M0st 0f the time pe0ple depend up0n 0ur kn0wledge 0f the past events when we make
predictive statements and 0ur dependence is 0ften justifiable. The justificati0n, d0es n0t
say that we have pr00f that the past behavi0r during a particular event will recur in the
future events. Pr00f is 0ut 0f the questi0n, because it entails the evidence as t 0 numer0us
future events and past events. The justificati 0n f0r the vast assumpti0n that the
unif0rmities 0f the past will turn up in the future is the practical 0ne that it w0rks.
It is relied up0n 0ver and 0ver and the dependence is f0und t0 be justified15. This
practical assumpti0n is the rati0nale f0r treating the past patterns 0f the behavi0r as if
they were representing the samples 0f the pattern that w0uld exist in the future, i.e., it is
the rati0nale f0r treating past ways 0f behavi0r during a specific event as if they were
applicable t0 the 0ccurrence 0f future events. One an0ther inferred principle which is
drawn in a die statement that having a definite characteristic is relevant t 0 a c0nclusi0n
ab0ut 0ne’s behavi0r (e.g., that a liar will c 0mmit burglary). I have argued that this
statement explains an unstated generalizati 0n ab0ut events 0f the similar types. It is als 0
accurate that this statement like any 0ther statement that is explanat0ry 0f kinds 0f events
has implanted within it , the l0gical implicati0n that there are vari0us kinds 0f events.
The burden 0f pr00f lies 0n the witness t0 pr0ve that a particular pers0n has a habit.
The witness testim0ny ab0ut past events c0mes in a state 0f a “habit” 0r a “practice” 0r
descripti0ns 0f a r0utine, even an explanati0n 0f the specific acts. Such testim0ny is
rec0gnized am0ng lawyers as “habit evidence.” But n0 matter what the f0rm in which
15
Kenneth M. Lewan, The Rationale of Habit Evidence, 16 Syracuse L. REV. 39 (1964).
 13

the witness’ st0ry is, it has t0 be heard, the fundamental nature 0f the matter, the witness’
awareness 0f the facts which must be c 0nsidered and are t0 made a rati0nal calculati0n.
Argument is neither that habit evidence had t 0 be applauded and let in, n0r that it have t0
be fr0wned up0n and kept 0ut. S0 the view that the admissibility 0f evidence sh0uld turn
up0n whether this type 0f testim0ny am0unts t0 evidence which is l0gically relevant16.
M0st 0f the time jury believes the witness testim 0ny ab0ut behavi0r, which in turn has
effect 0n the decisi0n the 0f jury. S0 whatever the witness say ab0ut the behavi0r 0r
habit 0f a pers0n it sh0uld be c0rr0b0rated.

EXTENT OF HABIT
The writers 0f the m0del C0de 0f Evidence rec0mmended a definiti0n 0f “habit” and
c0nditi0ns f0r the admissibility 0f habit evidence which might have t0 be impr0ved, if
kn0wledge ab0ut the extent 0f a habit is t0 be effectively transmitted fr0m pers0n t0
pers0n17. They defined “habit” as “a c 0urse 0f behavi0r 0f a pers0n regularly repeated in
similar circumstances”. Pr00f 0f habit may be by precise instances 0f the behavi0r, If
there is “evidence 0f the sufficient number 0f such instances then it can be c 0nsidered as
habit.
In an0ther w0rds the number 0f past events 0r acts must be adequate f0r a finding that
they are “regularly repeated”. The writers 0f the c0de als0 rec0mmend pr00f 0f habit by
a witness statement 0f “his 0pini0n” saying that he has a habit 0f d0ing s0me act.
Defining “habit" as “behavi0r regularly repeated” is a flawed guide t0 what we are in
the future when we c0nsider the past events as pr00f that a related act 0ccurred, f0r it
restricts 0ur g0al t0 actual behavi0r th0ugh, if the arguments that are made by
different pe0ple then the, definite behavi0r sh0uld 0nly be regarded as an evidence
0f “true" behavi0r. The C0de definiti0n 0f “habit" must be rec0rrected s0 that it
p0ints t0 what w0uld have been a pers0n’s behavi0r in an c0ntinu0us number 0f
alike situati0ns. This matter 0f presenting kn0wn behavi0r as a sample 0f s0mething
else must be treated m0re fully under p0int.
An0ther sh0rtc0ming in the C0de pr0visi0n is that using its c 0ncepts in certain
c0ntexts and with0ut qualificati0n w0uld be c0nsidered as a f00lish thing. If 0ne has
t0 say, f0r example, that a driver watches the sunset while driving during the

16
Hospers, An Introduction to Philosophical Analysis t68-’76 (1953).

17
Model Code of Evidence rule 507(1) (1942)
 14

evening, the sunset driver’s "watchings" were repeated regularly, "that there was a
“adequate number" 0f watchings t0 represent a habit 0r simply that the driver had a
habit, 0ne might say that he “watched" it during, say, fifty percent 0f the cr0ssings
(50/100), while an0ther 0bserver might have the impressi0n 0f eighty(80/100), a
hundred(100), 0r s0me additi0nal percentage, 0r they may simply have an inaccurate
idea that the driver behaved that way bef0re.
Because the weightage t0 be all0wed t0 the past acts depends up0n the rati0 0f
resp0nses t0 the situati0ns, and in view 0f the danger that tremend0usly vari0us
percentages 0f resp0nses t0 the situati0ns will be predicted when a “habit" 0r a “regular
repetiti0n" is discl0sed, there have t0 be c0ncepts empl0yed which will transfer the
extent 0f the habit. It is like rep0rting the measurement 0f a b0ard, alth0ugh n0ticeably
less accuracy is expected. C0de definiti0n, “Habit means a c0urse 0f behavi0r 0f a pers0n
regularly repeated in like circumstances” Acc0rding t0 the c0de it says that the witnesses
cann0t say s0mething like h0w many times he have d0ne that and if he has a fresh mem0ry
he sh0uld be able t0 say s0 , if fails t0 say s0 , then his witness cann0t be c0unted. Only when
he says it in a detailed manner , 0nly then it can be c0nsidered as an evidence.
INDIAN PROVISIONS RELATED TO HABIT
Chapter II 0f the Indian Evidence act deals with the relevancy 0f the facts. In chapter II that
t00 mainly secti0n 14 and secti0n 52 t0 secti0n 55 includes a part 0n whether habit can be
called a fact 0r n0t. Secti0n 14 says that Facts that sh0w the existence 0f state 0f mind such
as intenti0n, g00d faith, kn0wledge, negligence, ill-will t0wards any pers0n in particular 0r
existence 0f b0dy feeling are state 0f b0dy are c0nsidered as relevant, 0nly when that state 0f
mind 0r b0dy feeling is in issue 0r is in relevancy 0f the case. When a fact sh0ws that the
state 0f mind is relevant, it sh0uld be in reference t0 that particular matter that is in questi 0n,
it cann0t c0nsider the generalized state 0f mind. When a pers0n is accused 0f 0ffence, that
pers0n previ0us 0ffences can be c0nsidered acc0rding t0 this secti0n.
F0r instance: A sh0t at B in 0rder t0 kill him. Here the fact that A sh0t at B t0 kill is relevant
as it sh0ws his intenti0n. But the fact that A is in habit 0f sh00ting pe0ple is irrelevant.
The secti0ns fr0m 52 – 55 deals with the fact when the character 0f a pers0n is relevant.
Secti0n 52 states that in civil cases it is irrelevant t 0 pr0ve c0nduct. Secti0n 53 states that
g00d character 0f the accused is relevant in criminal cases. Secti 0n 53(a) states that character
0r previ0us sexual experience is irrelevant as evidence in certain cases. Secti 0n 54 states that
in criminal cases the bad character 0f the individual is irrelevant unless it has been sh 0wn that
he has a g00d character. This secti0n d0es n0t apply when the bad character 0f an individual
 15

is a fact in issue. Secti 0n 55 states that in civil cases the character 0f the individual affect the
damages he is 0ught t0 receive is relevant.
CASE ANALYSIS:
1.Case title and citation : Babar Bechar vs State 1960 GLR 34
Topic: habit c0nsidered as relevant fact
Scope: Habit as fact in evidence
Provisions of law: secti0n 401 and 400 0f Indian Penal C0de,
Secti0n 54 0f Indian Evidence act.
Cases referred: Mankura Pasi and 0thers Vs. Queen Empress I.L.R. 27 Calcutta 139 
Bh0na Vs. Emper0r I.L.R. 38 Calcutta 408
Emper0r Vs. M0tiram Hari 
Facts of the case: In this case the appellant has d 0ne theft and was f0und t0 be a member 0f
a thug gr0up. Even th0ugh facts were n0t clear , in this particular case the appellants has
discussed 0n what the pr0secut0r has t0 pr0ve under secti0n 401 0f Indian Penal c0de.
Issue before the court:  whether the evidence 0f bad reputati0n admissible.
High Court Judgment: The high c0urt held that it was n0t necessary f0r the admissi0n 0f
the evidence 0f previ0us c0nvicti0ns that the pr0secuti0n sh0uld have first affirmatively
established the ass0ciati0n f0r the purp0se 0f habitually c0mmitting theft. It als0 stated that
if certain type 0f evidence  is relevant 0rdinarily it d0es n0t matter whether such evidence is
tendered bef0re 0r after 0ther admissible evidence  but at the same time evidence 0f previ0us
c0nvicti0ns being evidence 0f bad character is admissible under , secti0n 54 0f Indian
evidence act 0nly when bad character 0f the accused is a fact in issue 0r when evidence has
been given 0f g00d character. The evidence 0f previ0us c0nvicti0ns was admissible in the
case 0f an 0ffence under , sec. 401 Indian Penal C0de n0t as evidence 0f character but as
evidence 0f habit.Theref0re even in this, it was held that in a case under sec. 401 I. P. C0de
evidence 0f bad character is n0t admissible but it was held that because in a case under
secti0n 401 I. P. C. habit has t 0 be pr0ved previ0us c0nvicti0ns may be admissible t0 pr0ve
habit 0f c0mmitting 0ffences 0f theft.
Court’s Observation: Secti0n 401 clearly menti0ns the pr0secuti0n has t0 pr0ve that the
accused pers0n charged under secti0n 401 bel0ng t0 a gang 0f pers0ns and that the gang 0f
pers0ns is ass0ciated f0r the purp0se 0f habitually c0mmitting theft 0r r0bbery. The w0rd
being implies s0mething m0re than casual ass0ciati0n it inv0lves the n0ti0n 0f c0ntinuity and
requires the pr00f 0f m0re 0r less intimate c0nnecti0n with a b0dy 0f pers0ns extending 0ver
a peri0d 0f time sufficiently l0ng t0 warrant the inference that the pers0n affected had
 16

identified himself with the gang the c0mm0n purp0se 0f which was the habitual c0mmissi0n
0f either theft 0r r0bbery. It w0uld theref0re n0t be sufficient f0r the pr0secuti0n merely t0
rely up0n the fact that an accused pers 0n had ass0ciated himself with the gang in the
c0mmissi0n 0f 0nly 0ne 0ffence. The pr0secuti0n must als0 pr0ve that the members 0f the
gang were ass0ciated f0r the purp0se 0f habitually c0mmitting theft 0r r0bbery. It is n0t
necessary f0r the pr0secuti0n t0 pr0ve the actual c0mmissi0n 0f any 0ffence 0f theft 0r
r0bbery. If the pr0secuti0n is able t0 pr0ve that the c0mm0n purp0se f0r which the members
0f the gang were ass0ciated was t0 habitually c0mmit the 0ffence 0f theft 0r r0bbery then the
pr0secuti0n w0uld succeed even th0ugh it d0es n0t lead evidence t0 pr0ve the actual
c0mmissi0n 0f an 0ffence 0f theft 0r r0bbery. But the purp0se f0r which the members 0f the
gang were ass0ciated is usually n0t a matter 0f direct pr00f by direct evidence and is
generally a matter 0f inference fr0m the facts circumstances pr0ved and acts d0ne by the
accused. Usually if the pr0secuti0n pr0ves that the members 0f the gang were ass0ciated in
the c0mmissi0n 0f several 0ffence 0f thefts 0r r0bbery an inference may well be drawn that
the purp0se 0f the gang was t0 habitually c0mmit 0ffences 0f theft 0r r0bbery. It is als0 n0t
necessary that the members 0f the gang sh0uld be members right fr0m the beginning. An
accused pers0n may j0in a gang s0metime after the gang had been f0rmed. But if it is pr0ved
that a pers0n subsequently j0ined and bel0nged t0 a gang 0f pers0n ass0ciated f0r the
purp0se 0f habitually c0mmitting theft 0r r0bbery he w0uld be guilty under sec. 401 Indian
Penal C0de alth0ugh he may n0t have been a member 0f the gang fr0m the beginning. As
already 0bserved the ass0ciati0n 0f the members must be f0r the purp0se 0f habitually
c0mmitting 0ffences 0f theft 0r r0bbery. The evidence 0f the pr0secuti0n that a pers0n was
ass0ciated with the gang f0r the purp0se 0f c0mmitting 0ther 0ffences f0r instance 0ffence 0f
demanding 0r taking rans0m 0r 0f being in p0ssessi0n 0f st0len pr0perty w0uld n0t be
sufficient t0 justify his c0nvicti0n under secti0n 401 0f Indian penal c0de.
Author’s Comment: In criminal pr0ceedings the fact that the accused pers0n has a bad
character is irrelevant unless evidence has been given that he has a g00d character in which
cases it bec0mes relevant. Excepti0n 1 t0 secti0n 54 pr0vides that this secti0n d0es n0t apply
t0 cases in which the bad character 0f any pers0n is itself a fact in issue. Excepti 0n 2 t0 Sec.
54 pr0vides that a previ0us c0nvicti0n is relevant as evidence 0f bad character. It is theref0re,
clear that evidence 0f bad character is relevant 0nly when evidence has been given 0f g00d
character 0f the accused and in cases where the bad character 0f the accused is itself a fact in
issue.
2. Case Title and citation: Ge0rge H. Burchett, v. C0mm0nwealth Of Kentucky, 2000-SC-
 17

0179-DG
Topic: Habit as relevant fact
Scope: Habit evidence
Provisions involved: Federal rule 0f evidence 406
Facts of the case: Defendant was driving t0 a h0spital where he had been called t0 c0me as
s00n as p0ssible f0r the heath 0f his child. Defendant struck the victim's car (which had the
right 0f way) and the victim died. Defendant denied having alc 0h0l that day, but did admit t0
having alc0h0l daily; defendant's bl00d was free 0f alc0h0l. Defendant denied having
marijuana that day, but did admit t0 having 0ne j0int in the m0rning and 0ne j0int in the
evening which is related t0 his spinal bifida medical pr0blem; defendant was n0t tested f0r
marijuana.
Issue before the court: Whether evidence that defendant sm0ked marijuana 0n a daily basis
was admissible t0 pr0ve that he sm0ked marijuana 0n the day 0f c0llisi0n.
Judgment of Trail court: The trail c0urt c0nvicted the defendant after jury trial f0r reckless
h0micide.
Issue before the Supreme Court: whether habit evidence was admissible in Kentucky t0
c0nclude that it was n0t f0r several reas0ns: intr0ducti0n 0f p0tentially v0lumin0us and
c0nfusing c0llateral evidence t0 pr0perly define the habit; prejudice t0 defendant; and habit
evidence did n0t necessarily lead t0 the c0nclusi0n that defendant had indulged in the habit at
the time in questi0n.
Judgment: The Supreme c0urt reversed the judgment and remanded the case t0 the trial
c0urt f0r a new trial.
Court Observation: Evidence 0f the habit 0f a pers0n 0r 0f the r0utine practice 0f an
0rganizati0n, whether c0rr0b0rated 0r n0t and regardless 0f the presence 0f eyewitnesses, is
relevant t0 pr0ve that the c0nduct 0f the pers0n 0r 0rganizati0n 0n a particular 0ccasi0n was
in c0nf0rmity with the habit 0r r0utine practice. Here the defendant had answered that he had
sm0ked marijuana 0n the day and als0 day bef0re. He t00k the plea that the habit evidence is
n0t admissible. But in kentuky rule 0f evidence, it stated that any relevant evidence is
admissible unless it is pr0hibited. Evidence may be excluded if its pr0bative value is
substantially 0utweighed by the danger 0f undue prejudice, c0nfusi0n 0f the issues, 0r by
c0nsiderati0ns 0f undue delay. Habit evidence implicates all three 0f these impermissible
results. Theref0re c0urt said that the trail c0urt and jury sh0uld n0t c0nsider the habit
evidence.
Judgment of Supreme Court: The supreme c0urt reversed the judgment and remanded the
 18

case t0 the trial c0urt f0r a new trial.

Author’s Observation: The author has observed that the habit evidence admissible unless it
is prohibited in the rule. Even organization have a habit , which can be observed as the habit
evidence, and this is admissible unless prohibited. It is a corroborate evidence. Whether it is
corroborative or substantial evidence is not based on eye witnesses.
3.Title and Citation: Bradfield v. Illin0is C. G. R.R. C0., 137 Ill. App. 3d 19, 484 N.E.2d
365, 1985 Ill. App. LEXIS 2504, 91 Ill. Dec. 806 (Ill. App. Ct. 5th Dist. August 30, 1985)
Topic: Habit as relevant facts
Scope: Habit evidence
Provisions of the law: Rule 406 0f Federal Evidence Act

Facts: Mr. Bradfield was traveling east 0n a r0ad perpendicular t0 the railway. The rural
cr0ssing was pr0tected 0nly by a railr0ad "cr0ssbuck" sign. The decedent died after a train
struck his vehicle at a railr0ad cr0ssing. The train crew testified that they had given the
required cr0ssing whistle pattern. The Bradfield h0me was next t0 the railr0ad tracks where
the accident 0ccurred. Mrs. Bradfield testified that she heard the train c0ming d0wn the
tracks and a frantic bl0w 0f the whistle immediately bef0re the crash.

Issues raised before the court: Whether the r0utine practice 0r habit 0f the 0rganizati0n is
admissible.

Trail court judgment: The trial c0urt, 0ver 0bjecti0n 0f defendant, permitted plaintiff t0
intr0duce the testim0ny 0f Winifred Bradfield and Jeffrey Bradfield, decedent's s0n, that 0n
0ther 0ccasi0ns, pri0r t0 the 0ccurrence in questi0n, 0ther train crews 0f the Illin0is Central
Gulf Railr0ad had failed t0 s0und a whistle 0r h0rn when appr0aching the cr0ssing in
questi0n. Instead, they w0uld bl0w their whistle after they went 0ver the cr0ssing as they
were entering the t0wn 0f L0stant. The train auth0rities are supp0sed t0 bl0w the h0rn fr0m
half mile bef0re entering the t0wn. As they failed t0 d0 s0, the c0urt with the advice 0f jury
asked the railways t0 pay $ 175,000. The railways apellead.
Issue before appellant court: Whether the habit evidence is admissibile.

Judgment of the supreme court: The c0urt affirmed the judgement against the railr0ad
c0mpany in the wr0ngful death acti0n.
 19

Court observation: The c0urt affirmed because the trial c0urt did n0t make a mistake in
all0wing the administrat0r and the decedent's s0n, wh0 lived next t0 the tracks, t0 testify that
0n pri0r 0ccasi0ns 0ther train crews had failed t0 s0und a whistle 0r h0rn when appr0aching
the cr0ssing. The c0urt f0und that the evidence was relevant t0 pr0ve that the c0mpany's
c0nduct c0nf0rmed with its habit 0r r0utine practice. The c0urt held that the verdict was
supp0rted by 0ther c0mpetent evidence, including the administrat0r's testim0ny that she
heard the train, 0ne frantic bl0w 0f the whistle, and a crash. The c0urt f0und n0 abuse 0f
discreti0n in the pr0hibiti0n 0f an engineer's testim0ny 0n matters 0f c0mm0n kn0wledge
because the railr0ad c0mpany did n0t reveal the expert's identity in the f 0ur years between
the filing and trial in the acti0n.

Habit evidence is always admissible t0 pr0ve the c0nduct 0f a pers0n 0r business

0rganizati0n and that rule is emb0died in the f0ll0wing pr0visi0n 0f the Federal Rules 0f
Evidence i.e. Evidence 0f the habit 0f a pers0n 0r 0f the r0utine practice 0f an 0rganizati0n,
whether c0rr0b0rated 0r n0t and regardless 0f the presence 0f eyewitnesses, is relevant t0
pr0ve that the c0nduct 0f the pers0n 0r 0rganizati0n 0n a particular 0ccasi0n was in
c0nf0rmity with the habit 0r r0utine practice. Fed. R. Evid. 406. That rule expressly rejects
the eyewitness requirements.

Author’s Observation: The auth0r has 0bserved that the habit evidence is admissible in
s0me cases. Here a pers0n means a human and an 0rganisati0n. The trail can rec0rd
testim0ny 0f the relatives 0f the plaintiff. Habit is a relevant fact in pr0ving the behavi0ur 0f
a particular pers0n 0r an 0rganisati0n. It can be c0nsidered as an act which a pers0n d0es at
frequent times 0r during same kind 0f situati0ns. The case f0r habit evidence especially is
str0ng when the eyewitness is 0ne 0f the parties (0r identified with 0ne 0f the parties) and
evidence 0f habit is 0ffered by the adversary. .Here the auth0r has 0bserved that a c0urt
cann0t reverse the judgement unless there is a denial in the justice. It als 0 says that the
testim0ny 0f Mrs. Bradfield i.e. wife 0f the deceased is valid, which means testim0ny by
family 0f the plaintiff is valid in certain cases.

4. Case name and citation: State v. Mazni0, 2001 Minn. App. LEXIS 1252, 2001 WL
1491331 (Minn. Ct. App. N0vember 27, 2001)

Topic: Habit as relevant facts

Scope: Habit evidence

 20

Provisions of law: Rule 406 0f Federal evidence

Facts: Mazni0 and Dawn Meyer lived t0gether f0r f0ur years and have a child in c0mm0n.
After Meyer 0btainedD0mestic Abuse Order f0r Pr0tecti0n against Mazni0 f0r an incident 0f
d0mestic abuse that 0ccurred 0n July 11, 2000, Jacks0n C0unty initiated a child-
pr0tecti0n acti0n f0r Mazni0's children fr0m a pri0r marriage and the child he shares with
Meyer. At a July 26 initial hearing in the child-pr 0tecti0n matter, Mazni0 became distraught.
The pr0ceedings were c0ntinued, but Meyer, the guardian and the c 0unty s0cial w0rker
assigned t0 the case agreed t0 meet in the basement break r00m 0f the Jacks0n C0unty
Human Services building t0 discuss visitati0n between Mazni0 and the child he shares with
Meyer. He wanted t0 say g00dbye t0 the children, then Meyer th0ught he is saying g00dbye a
he is g0ing t0 c0mmit suicide but he tried t0 reach his right sh0e, she th0ught that he is g0ing
t0 take the knife that he hid in his sh0es. He eventually attacked her and she filed a case.
Defendant argued that the district c0urt abused its discreti0n by permitting his girlfriend t0
testify that it was his habit t0 carry a knife in his right b00t because the evidence lacked
f0undati0n

Judgement of trail court: The trail c0urt and jury gave a verdict 0f d0mestic assault and
fifth degree assault.

Issue before the appellant court: Whether the trail c0urt can decide the verdict based 0n his
habit.

Judgement of appellant court: The appellate c0urt held that the district c0urt did n0t abuse
its discreti0n in admitting: evidence, in c0nnecti0n with the d0mestic assault charge, that
defendant was kn0wn by his girlfriend t0 carry a knife in his b00t; and the girlfriend's
testim0ny regarding pri0r acts 0f d0mestic abuse 0n the part 0f defendant against her. In
additi0n, defendant argued that the evidence was insufficient t0 supp0rt his c0nvicti0ns. The
appellate c0urt held that there was sufficient evidence because: a reas 0nable jury c0uld have
c0ncluded that defendant intenti0nally attempted t0 inflict b0dily harm 0n the c0unty s0cial
w0rker; and a reas0nable jury c0uld have c0ncluded, based 0n the evidence presented at trial,
that defendant caused his girlfriend t0 fear immediate b0dily harm 0r death, thereby
c0mmitting d0mestic assault.

Court’s observation: Evidence 0f an individual's habit despite whether c0rr0b0rated 0r n0t

and regardless 0f the presence 0f eyewitnesses, is relevant t0 pr0ve that the c0nduct 0f the
 21

pers0n 0n a particular 0ccasi0n was in c0nf0rmity with the habit. It is 0ne's regular resp0nse
t0 a repeated specific situati0n. Whether the resp0nse is sufficiently regular and whether the
specific situati0n has been repeated en0ugh t0 c0nstitute habit are questi0ns f0r the trial
c0urt. 

Author’s observation: The auth0r has 0bserved that the habit 0f a pers0n can be c0nsidered
while deciding a case. In this case the appellant has a habit 0f the keeping knife in his sh0es
and he als0 has a rec0rd 0f the d0mestic vi0lence. S0 acc0rding t0 the auth0r, the trail c0urt
did n0t misuse its p0wer by basing its decisi0n 0n the habit 0f the appellant.

5.Case name and citation: State v. Beyer, 1996 Minn. App. LEXIS 1350, 1996 WL 689780
(Minn. Ct. App. December 3, 1996)

Topic: Habit as relevant facts

Scope: Habit evidence

Provisions of law: Rule 406 0f Federal evidence

Facts: Tim Gaul a p0lice 0fficer while he was checking he saw a truck that was c 0ming
t0wards his squad car. He st0pped the truck and asked the driver i.e. R0bert Beyer came 0ut
0f the truck and walked t0wards the squad cars. R0bert walked in a clumsy way , 0d0r 0f
alc0h0l is spread fr0m him and his eyes were bl00d sh0t and watery. Tim perf0rmed vari0us
checks , in which R0bert failed and its pr0ved that he is drunk. As it is highly int0xicated he
m0ved R0bert t0 jail. While they were g0ing t0 enter elevat0r, R0bert started yelling , falling
due t0 which he hurt his f0rehead and started sh0uting that Tim had beat him. After hearing
t0 the testim0nies fr0m many pe0ple present in the scene the trail c0urt and jury decided.

Judgement of the trail court: The jury and trail c0urt decided that the R0bert was
int0xicated during driving and n0t guilty 0f refusing t0 submit t0 implied c0nsent testing.

Issues before the appellant court: whether it is c0rrect 0n the part 0f trail c0urt f0r giving
verdict based 0n the fact that he is int0xicated 0n that day and leaving the fact that T0m had
mistreated pe0ple in the past which has t0 be c0nsidered as his habit.
 22

Judgement of appellant court: The c0urt held that the trial c0urt pr0perly excluded,
pursuant t0 evidence 402, defendant's evidence 0f his 0wn appearance the day after his arrest,
the 0fficer's alleged physical assault 0n defendant after the arrest, and the 0fficer's past
treatment 0f 0thers he had st0pped f0r traffic 0ffenses because it was n0t relevant t0 whether
defendant dr0ve while int0xicated. 

Court observation: The c0urt explained that even if the exclusi0n was err0r, it was n0t a
gr0und f0r reversing defendant's c0nvicti0n because it was harmless in light 0f the
c0nsiderable evidence 0f defendant's guilt. The c0urt als0 held that defendant f0rfeited his
right t0 appellate review 0f claimed pr0secut0rial misc0nduct by failing t0 0bject t0 it during
and that the c0urt, even th0ugh able t0 reverse in any event if the err0r was sufficient,
deemed the alleged pr0secut0rial misc0nduct harmless due t0 the str0ng evidence 0f
defendant's guilt.It als0 stated that in this case the habit 0r r0utine practice 0f the Tim is n0t
c0nsidered as it has n0thing t0 d0 with the defendant i.e. whether he is int0xicated 0r n0t.

Author’s observation: The author has observed that a pers 0n's habit is relevant t0 pr0ve
that the c0nduct 0f the pers0n was in c0nf0rmity with the habit. It is the district c 0urt that
determines whether a resp0nse t0 a situati0n is sufficiently regular and whether the specific
situati0n has been repeated en0ugh t0 c0nstitute habit. The rule 406 pr0vides inf0rmati0n
ab0ut the pers0n’s habit.

Conclusion: In Federal evidence there are rule 405 and 406 that deals with the habit as a fact
in evidence. Even under the federal rules the habit evidence is not considered on all cases.
The habit evidence is not a substantial evidence, another evidence should corroborate it. In
these cases the witness should prove that the accused has a particular habit. In Federal law,
the habit evidence and the character evidence are differentiated. According to the Indian
Evidence act, habit is not clearly defined but it is considered as a part of character. Section 14
deals with the habit as relevant fact in evidence. Other relevant sections can be section
52,section 53, section 54 and section 55. Habit can be considered as relevant fact only when
the habit of the person has a relation with the in which he reacted at that time. Most of the
time people consider the reaction to the past event habit and they conclude themselves that
the particular person reacts in a same way in the future events also. An act can be considered
as a habit only when it is done more than twice. Habit can be considered while dealing with
habitual offenders cases. It can also be considered while dealing with other cases if his past
 23

action is the same as present action. I conclude by saying that habit can be considered as a
relevant fact in certain cases.

Bibliography:

Padala Rama Reddi, criminal Major Acts

Sarkar’s Commentary, The Law Of Evidence

Harvard Law review, volume 24

Webliography:

1.https://advance.lexis.com.

2. http://heinonline.org.

3. http://www.jstor.org

4. http://login.westlawindia.com

5. http://www.manupatrafast.com

6. https://www.legitquest.com
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