ORS 40.180¹
Rule 406. Habit
  • routine practice

(1) 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 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.

(2) As used in this section, “habit” means a person’s regular practice of meeting a particular kind of situation with a specific, distinctive type of conduct. [1981 c.892 §21]

(Rule 406)

Notes of Decisions

Admissibility of habit evidence is within discre­tion of trial court. Charmley v. Lewis, 77 Or App 112, 711 P2d 984 (1985), aff’d302 Or 324, 729 P2d 567 (1986)

Plaintiff’s regular practice of crossing particular intersec­tion within unmarked crosswalk was admissible evidence of habit, as it was evidence of frequent and invariable or consistent response that was specific and distinctive. Charmley v. Lewis, 302 Or 324, 729 P2d 567 (1986)

Behavior can only achieve status of habit under this rule if situa­tion giving rise to it reasonably could be responded to in variety of ways, each having unique characteristics by which it can be readily distinguished. Charmley v. Lewis, 302 Or 324, 729 P2d 567 (1986)

“Distinctive” requires that behavior at least be semi-automatic and recurring response, beyond mere obedience to law, by actor confronted with particular situa­tion to which variety of definable responses would be more or less equally reasonable. Charmley v. Lewis, 302 Or 324, 729 P2d 567 (1986)

Chapter 40


Notes of Decisions

General rule is that polygraph evidence is inadmissible in pro­ceed­ing governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

Where state law completely precludes reliable, ma­te­ri­ally exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitu­tion. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), aff’d State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

Oregon Evidence Code articulates min­i­mum standards of reliability that apply to many types of evidence for admissibility, including eyewitness identifica­tion evidence, and parties must employ code to address admissibility of eyewitness testimony. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Law Review Cita­tions

59 OLR 43 (1980); 19 WLR 343 (1983)

Chapter 40

Evidence Code

Annota­tions are listed under the heading “Under former similar statute” if they predate the adop­tion of the Evidence Code, which went into effect January 1, 1982.

1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors040.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information