Evidence: Lecture notes

Lecture Notes: Categorical Rules of Exclusion

Summary of FRE 401 and 402
Relevant evidence shifts the probability of a material fact (FRE 401). Relevant evidence is admissible unless (FRE 402) ...
It is unduly prejudicial, confusing, or time-consuming (403).
Prejudice arises from misestimation or value distortion.

Another rule excludes the evidence

Categorical Rules of Exclusion
These rules cover situations that could be handled by direct application of Rules 401 and 403. But they involve recurring problems. Some of them involve policies extrinsic to the process of factfinding. They make evidence inadmissible for certain purposes (but not for others).
FRE 407 illustrates this structure:
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

This rule cannot be justified on ordinary relevance grounds. E is logically relevant. It indicates that there was a danger and that something could have been done about it. These facts are material in tort cases. E is not very prejudicial. There is no "estimation" problem. The jury will not think that the defendant is evil and less worthy of the law's protections because the defendant tried to fix a problem.
The theory of the rule is that (1) it avoids discouraging people from taking remedial measures because that evidence might be used against them, and (2) the marginal probative value of the evidence to show danger generally is small, so not much is lost by excluding it.
These two considerations lead to a rule that excludes the evidence whenever it used merely to show a departure from the standard of care or the like. But if the evidence is introduced for another purpose, it has more probative value, and categorical exclusion is not justified. As the last sentence of the rule indicates, however, the evidence must be used to prove a point that is actually disputed. When the evidence is admitted for a purpose other than proving negligence, culpable conduct, etc., the judge can instruct the jury not to use it only for the purpose that justifies its admission.
Is the rule sound? How often would the possibility that evidence will be used in a lawsuit deter people to taking such action? In product liability cases, would the fear of punitive damages for later injuries cause manufacturers to take appropriate action anyway?
Other rules of categorical exclusion apply to settlements, medical payments, plea bargains, and insurance. They have a similar structure and rest on grounds other than the Rule 403 considerations.
Questions

1. Rule 407 applies to proof of a subsequent remedial measure in a product liability case in which plaintiff alleges that the manufacturer is strictly liable in tort for marketing a defective product. True or false? The correct answer is true. FRE 407 applies to remedial measures. It applies to all actions involving defective products, even those that do not require proof negligence. This is clear from the words of the rule. Note: As originally drafted, the rule referred only to "negligence or culpable conduct." This led to divided opinions from courts as to whether the rule applied in strict liability cases, but most courts deemed even the nonnegligent marketing of defective products to be "culpable conduct." The rule was amended to refer to "negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction" to make it clear that this exclusionary rule applies in strict liability actions. Whether it should is debatable.
2. P and his family stayed at a motel. Someone broke into their room and stole their money. P sues the motel, contending that it was negligent in not having a TV security system to watch the entrances to the rooms. The motel owner testifies that such a system would have been too expensive. P asks him, “Isn’t it true that you installed a TV security system 8 months after the robbery?” The motel objects. Under FRE 407, the evidence is
A) Inadmissible because it involves a subsequent remedial measure
B) Admissible to show feasibility
C) Inadmissible because feasibility is not controverted
D) Inadmissible because the subsequent remedial measure shows ownership "C" and " D" are not correct because the FRE 407 allows -- not forbids -- evidence of subsequent remedial measures to prove feasibility or ownership. Because the owner testified that it was not economically feasible to install the TV security system (he said it was too expensive), the evidence can be admitted to show feasibility. (It also could admitted to impeach him, but that is not one of the choices.) Thus, the correct answer is "B."

FRE 408: Settlements and Settlement Negotiations
The rule is designed to encourage settlements and to make it easy for parties or their lawyers to say things that might encourage settlements but would look like admissions of guilt. The problem illustrates one issue regarding the scope of the rule: Are offers and statements made before there is a formal "claim" within the rule's protection? It can be argued that the policy of encouraging settlements supports the view that a potential party to litigation should not have to wait until a complaint is filed to discuss freely the settlement of a possible claim.
The rule does not cover expressions of sympathy and admissions of responsibility that are not part of compromise negotiations. However, some states have adopted rules to exclude these statements as well. FRE 409 also does not apply when there is no dispute as to the validity of the claim or amount.due.
FRE 409: Medical Payments
This rule differs from FRE 408 in that it does not cover statements that accompany the furnishing of or payment for medical care of an injury . What justifies this difference?
FRE 410: Plea Agreements and Discussions
FRE 408 applies to civil cases. FRE 410 is the criminal analog. It covers "any statement [against the defendant] made in the course of plea discussions," but there is an important limitation here. The statements must come from talks "with an attorney for the prosecuting authority." A defendant who tells the police he wants to work out a deal and makes incriminating statements has no safe harbor under this rule. And, unlike FRE 407, FRE 408 does not treat the parties equally. A prosecutor's statements offered for the defendant are not excluded.
FRE 411: Insurance
Whether this rule functions usefully is doubtful. See McCormick. Like most of the other rules, it bars the admission of evidence for one purpose (where it has little probative value) but not for others (where it has more probative value). The discussion problem illustrates a non-prohibited use of this kind of evidence.

Summary of FRE 401 and 402
Relevant evidence shifts the probability of a material fact (FRE 401).	Relevant evidence is admissible unless (FRE 402) ... It is unduly prejudicial, confusing, or time-consuming (403). Prejudice arises from misestimation or value distortion. Another rule excludes the evidence

1. Rule 407 applies to proof of a subsequent remedial measure in a product liability case in which plaintiff alleges that the manufacturer is strictly liable in tort for marketing a defective product. True or false?	The correct answer is true. FRE 407 applies to remedial measures. It applies to all actions involving defective products, even those that do not require proof negligence. This is clear from the words of the rule.	Note: As originally drafted, the rule referred only to "negligence or culpable conduct." This led to divided opinions from courts as to whether the rule applied in strict liability cases, but most courts deemed even the nonnegligent marketing of defective products to be "culpable conduct." The rule was amended to refer to "negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction" to make it clear that this exclusionary rule applies in strict liability actions. Whether it should is debatable.
2. P and his family stayed at a motel. Someone broke into their room and stole their money. P sues the motel, contending that it was negligent in not having a TV security system to watch the entrances to the rooms. The motel owner testifies that such a system would have been too expensive. P asks him, “Isn’t it true that you installed a TV security system 8 months after the robbery?” The motel objects. Under FRE 407, the evidence is A) Inadmissible because it involves a subsequent remedial measure B) Admissible to show feasibility C) Inadmissible because feasibility is not controverted D) Inadmissible because the subsequent remedial measure shows ownership		"C" and " D" are not correct because the FRE 407 allows -- not forbids -- evidence of subsequent remedial measures to prove feasibility or ownership. Because the owner testified that it was not economically feasible to install the TV security system (he said it was too expensive), the evidence can be admitted to show feasibility. (It also could admitted to impeach him, but that is not one of the choices.) Thus, the correct answer is "B."