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Evidence Rule 406, commonly known as ER 406, is a notable provision in the realm of legal evidence, focusing on the admissibility of habit and routine practice in legal proceedings. Adopted on April 2, 1979, and later deleted on September 1, 2006, this rule has played a significant role in shaping how habit and routine evidence is treated in courtrooms.

The Essence of ER 406

At its core, ER 406 allowed for the use of evidence demonstrating a person’s habit or an organization’s routine practice to argue that their conduct on a specific occasion was in line with such habits or routines. This rule acknowledged that consistent behavior patterns could be a powerful indicator of how a person or entity is likely to act in given circumstances.

A. Habit of a Person

Under ER 406, if a person had a well-documented habit, this could be introduced as evidence. For example, if someone habitually followed a specific safety procedure, evidence of this habit could be used to argue that they likely followed the same procedure during the incident in question. This aspect of the rule recognized the predictability of human behavior based on established patterns.

B. Routine Practice of an Organization

Similarly, the rule applied to organizations. Evidence of a business’s routine practice, such as following certain protocols or procedures, was relevant in court to suggest that the organization acted in conformity with these practices at a specific time. This was particularly pertinent in cases involving corporate policies and procedures.

Corroboration and Eyewitnesses

A unique aspect of ER 406 was that such evidence could be admitted regardless of corroboration or the presence of eyewitnesses. This meant that the habit or routine itself, once established, could stand as substantial evidence.

Implications and Uses in Legal Cases

The application of ER 406 was vast. In personal injury cases, employment disputes, or contractual disagreements, showcasing a pattern of behavior or standard practices could decisively influence the outcome. The rule served to provide a framework for presenting such evidence in a structured and meaningful way.

Deletion and Its Significance

Despite its utility, ER 406 was deleted effective September 1, 2006. This deletion marked a shift in the legal landscape, possibly reflecting an evolution in the understanding of the reliability and relevance of habit and routine evidence. The deletion of this rule, along with its commentary, suggests a reassessment of how such evidence should be weighed against other types of evidence in legal proceedings.


While ER 406 is no longer in effect, its influence on the legal system during its tenure remains significant. It highlighted the importance of patterns in human and organizational behavior as a lens through which to view specific actions. The rule’s journey from inception to deletion encapsulates the dynamic nature of legal evidence standards and continues to be a point of reference in understanding the evolution of evidence law.

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