Wis. Stat. § 904.06
Habit; routine practice
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904.06(1)(1) Admissibility. Except as provided in s. 972.11 (2), 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.
904.06(2)(2) Method of proof. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.
904.06 AnnotationAlthough a specific instance of conduct occurs only once, the evidence may be admissible under sub. (2). French v. Sorano, 74 Wis. 2d 460, 247 N.W.2d 182 (1976).
904.06 AnnotationDiscussing use of specific instances evidence. State v. Evans, 187 Wis. 2d 66, 522 N.W.2d 554 (Ct. App. 1994).
904.06 AnnotationHabit evidence must be distinguished from character evidence. Character is a generalized description of a person’s disposition or of the disposition in respect to a general trait. Habit is more specific denoting one’s regular response to a repeated situation. However, habit need not be “semi-automatic” or “virtually unconscious.” Steinberg v. Arcilla, 194 Wis. 2d 759, 535 N.W.2d 444 (Ct. App. 1995).
904.06 AnnotationThe greater latitude given under Davidson, 2000 WI 91, for allowing other acts evidence in child sexual assault cases because of the difficulty sexually abused children experience in testifying and the difficulty prosecutors have in obtaining admissible evidence in such cases was properly applied when the victim, although an adult, functioned at the level of an 18-month-old, having an inability to recount what happened. This greater latitude is not restricted to allowing evidence of prior sexual assaults and was properly applied to allow evidence of pornography viewed by the defendant that helped to demonstrate motive. State v. Normington, 2008 WI App 8, 306 Wis. 2d 727, 744 N.W.2d 867, 07-0382.
Notes of Decisions
Cited in 22
cases (2 in the last 5 years), 1975–2025 · leading case: State v. Curtis L. Jackson
State v. Curtis L. Jackson (2014)
“Second, Jackson offered a November 7, 2004, City of Milwaukee 6 Although mentioned in this filing, Jackson never sought to admit evidence of a "habit" under Wis. Stat. § 904.06 , nor did the circuit court rule on the issue.”
State v. Muckerheide (2007)
“¶ 11 Muckerheide argued that the testimony of Braun's father was admissible as evidence of habit pursuant to Wis. Stat. § 904.06 , and as permissible evidence of other acts pursuant to Wis.”
Chomicki v. Wittekind (1985)
“Because the testimony of four of Wittekind's female tenants was relevant and highly probative as to his routine practice of demanding sexual favors, the trial court properly admitted this evidence pursuant *192 to sec. 904.06, Stats. Because credible evidence was introduced to…”
American Family Mutual Insurance v. Golke (2009)
“See Wis. Stat. § 904.06 ; 1A J. Wigmore, Wigmore on Evidence § 95 (Tillers rev.”
Burchett v. Commonwealth (2003)
“406; Wisconsin: Wis. Stat. Ann. § 904.06 ; Wyoming: Wyo.R.”
L. M. S. v. Atkinson (2006)
“Atkinson also claims that, because the other acts were remote in time and involved adult patients, not children or adolescents, the prior incidents do not meet the requirements for "habit" evidence under Wis. Stat. § 904.06 (2). He asserts, therefore, that the incidents that led…”
Board of Regents of University of Wisconsin System v. Mussallem (1980)
“Buchanan annexed to Plaintiff’s Motion for Summary Judgment, upon the grounds that said affidavit contained no evidentiary facts relevant to this action which would be admissible in evidence under Wisconsin Statute §904.06 (2). “2. Striking the Supplemental Affidavit of Charles…”
ZAWISTOWAKI v. Kissinger (1991)
“Next, Zawistowski claims that the trial court erroneously refused to allow testimony concerning Kissinger's "habit or custom" of referring to Zawistowski as a polluter.”
Frankard v. Amoco Oil Co. (1983)
“The Frankards argued the testimony was necessary to show a lack of credibility among certain Amoco employees and also to show Amoco’s “habit” under sec. 904.06, Stats. 7 Because there was no proper offer of proof, we cannot tell the relevancy of the testimony or the alleged…”
State v. Shaw (1985)
“Because it does not appear that cross-examination of Clark regarding the alleged perjury would result in a different verdict, this court will not order a retrial.”
Carol Lorbiecki v. Pabst Brewing Company (2024)
“§ 904.06, “routine practice of an individual or entity acting in the same way during the incident or period in dispute is circumstantial evidence that they likely acted in that manner during the incident in dispute.”
State v. Hicks (1995)
“1 The reference by Hicks's trial counsel to § 904.06, STATS., and Fed. R. Evid. 406 appears to be an error.”
— Wis. Stat. § 904.06(1) — 6 cases
Chomicki v. Wittekind (1985)
“Because the testimony of four of Wittekind's female tenants was relevant and highly probative as to his routine practice of demanding sexual favors, the trial court properly admitted this evidence pursuant *192 to sec. 904.06, Stats. Because credible evidence was introduced to…”
Carol Lorbiecki v. Pabst Brewing Company (2024)
“§ 904.06, “routine practice of an individual or entity acting in the same way during the incident or period in dispute is circumstantial evidence that they likely acted in that manner during the incident in dispute.”
State v. Brian L. Halverson (2019)
— Wis. Stat. § 904.06(2) — 4 cases
Chomicki v. Wittekind (1985)
“Because the testimony of four of Wittekind's female tenants was relevant and highly probative as to his routine practice of demanding sexual favors, the trial court properly admitted this evidence pursuant *192 to sec. 904.06, Stats. Because credible evidence was introduced to…”
State v. Shaw (1985)
“Because it does not appear that cross-examination of Clark regarding the alleged perjury would result in a different verdict, this court will not order a retrial.”
French v. Sorano (1976)
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