I went to law school in Austin, Texas, and a reasonable person might expect that you would never have to venture beyond Sixth Street to obtain a tasty cocktail. Nevertheless, every so often we would find ourselves in Dallas sitting at the bar in the Hard Rock Café drinking Hard Rock Hurricanes. The restaurant (consistent with the Big Texas habit of trying to dictate what other people do with their own bodies - as long as it doesn't involve controlling guns) had a policy of limiting the service of Hurricanes to two per customer. Fortunately, the drinks were served in glasses with the Hurricane recipe printed on the back. Therefore, we would simply order the ingredients ala carte from the bartender and mix them ourselves in our pricey souvenir glassware. A successful end-around the Hard Rock Hurricane policy.

A look under the rug of Colorado Rule of Evidence (CRE) 406, consistent with the federal version, reveals the opportunity for a similar end-around the character evidence limitations of CRE 404. Habit evidence seems a lot like the recipe on the back of the Hurricane glass. In People v. Trujillo, 369 P.3d 693, 695 (Colo.App. 2015), the court tried to draw a distinction between these two types of evidence. First, explaining that CRE 406 habit evidence is both admissible and "relevant to prove that the conduct of a person on a particular occasion was in conformity with the habit," but character evidence is "not admissible for the purpose of proving that a person acted in conformity with his or her character on a particular occasion." The court invoked McCormick on Evidence in stating that a habit represents "one's regular response to a repeated situation and is the person's regular practice of responding to a particular kind of situation with a specific type of conduct." The court thereafter differentiated character as "a generalized description of a person's disposition, or the disposition in respect to a general trait, such as honesty, temperance or peacefulness, that usually is regarded as meriting approval or disapproval." The Trujillo court went on to admit evidence that an elderly lady, who's debit card was used by her caregiver, had a habit of not giving caregivers her debit card.

In Slagle v. Cohen, 111 Fed. R. Evid. Serv. 597 (D.Colo. 2020), the court considered whether a ski patroller with fifty years of experience could testify that the plaintiff, who he had known for thirty years and regularly observed skiing at an expert level, was a safe skier. The court examined cases related to safe driving wherein courts have allowed habit evidence indicating that a person: (i) always wore a seatbelt when driving; (ii) signaled before changing lanes; and (iii) never drove over the posted speed limit, but determined that it would be inadmissible character evidence to testify that the person was a "safe driver." The Slagle court adopted this framework, remarking that "safe skiing practices are analogous to safe driving practices," and determined that the ski patroller could testify about the plaintiff's skiing ability, but could not testify that he was a "safe skier" who was likely skiing safely at the time of the collision.

In People v. T.R., 860 P.2d 559, 562 (Colo.App. 1993), the court admitted, as habit evidence, testimony that the victim had driven through the same intersection where the collision occurred every day and about the "cautions" which the victim habitually took while proceeding through this intersection. In contrast to this admissible habit evidence, the court found that testimony describing the victim as a "cautious driver" was inadmissible character evidence. These cases illustrate the willingness of courts to allow habit evidence to paint a clear picture, with the understanding that, as long as the picture is not given a title, it is not character evidence.

Neither "habit" nor "character" is defined within the Rules of Evidence, therefore, it is left to the courts to determine what these words mean and what these categories of evidence encompass. Both habit and character evidence rely on propensity reasoning to demonstrate that a person has a specific habit or character trait, and that the person acted in conformity with that habit or character trait on a particular occasion. Many of the Colorado opinions which discuss the distinction between habit and character evidence, relying on McCormick, acknowledge the fact that character evidence tends to merit either "approval or disapproval" by the community. It is this sprinkle of societal judgment that separates character evidence from the type of objective and morally-neutral traits that theoretically constitute habit evidence, and the reason why cautionary roadblocks are set up to slow the roll of proposed character evidence. However, if we are routinely admitting habit evidence that invokes this societal judgment, isn't that essentially an end-around the character evidence checkpoints?

In Colorado, Rule 406 states that "[e]vidence 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." The ambiguity of CRE 406 creates both inconsistency and the opportunity to bypass the restraints on character evidence. In a recent federal case, the court admitted evidence of the plaintiff's regular drug use to infer that the plaintiff was likely intoxicated when his electric bicycle was struck by a vehicle operated by United States Marine Corps personnel. Dooley v. United States, 117 Fed. R. Evid. Serv. 422 (S.D.N.Y. 2021). The Dooley court determined that when a party's intoxication is at issue, evidence of regular alcohol or drug use is admissible under Rule 406, and allowed evidence that the plaintiff used marijuana every day for many years prior to the collision. This seems a lot like what occurred at the Hard Rock Café.

The journey from habit to character evidence involves the subjective judgement of the community. Because jurors tend to believe that "character" is highly-predictive, and weigh negative traits more heavily than positive ones, we need to be careful about what we are admitting as habit evidence if we are trying to achieve justice.