4: Exclusion of relevant evidence

Question 1

Public policy exclusions: liability insurance

Answer 1

Evidence that a person was or was not insured against liability is not admissible to prove negligence or wrongdoing.

But evidence of insurance coverage may be admissible if relevant for some other purpose—e.g., demonstrating control of the insured asset.

Question 2

Public policy exclusions: subsequent remedial measures

Answer 2

Evidence of repairs or changes made after an accident is not admissible to prove:

(1) negligence;
(2) culpable conduct;
(3) defective product or design; or
(4) an inadequate warning.

But evidence of subsequent remedial measures may be admissible if relevant for some other purpose, e.g.:

(1) feasibility of countermeasures;
(2) ownership; or
(3) control of the tortious instrumentality.

Question 3

Public policy exclusions: settlement negotiations

Answer 3

A settlement offer made by any party is not admissible to prove the validity or the amount of a disputed claim:

• It cannot be used as a prior inconsistent statement to impeach.
• The rule applies:(a) to settlement offers; and
  (b) to conduct or statements made during settlement negotiations.

• This exclusion cannot be unilaterally waived by either party.

But such evidence may be admissible:

• for another purpose—e.g., a witness’s bias; or
• If a claim is not in dispute—e.g., if the settlement offer was made before the plaintiff filed her claim.

Question 4

Public policy exclusions: offers to pay medical expenses

Answer 4

Offers to pay medical expenses are not admissible to prove liability for injury, although statements made or conduct accompanying the offer may be admissible.

Question 5

Public policy exclusions: plea negotiations

Answer 5

Plea negotiations, including:

• withdrawn guilty pleas,
• nolo contendere pleas,
• offers to plead guilty, and
• statements made while negotiating a plea,

are not admissible in a civil or criminal case.

The protection afforded by this rule may be waived by the defendant if:

(1) knowingly and voluntarily and
(2) in the presence of counsel.

Question 6

“Rape shield” exclusions

Answer 6

Under the “rape shield” rule, evidence offered to prove the sexual behavior or sexual predisposition of a victim (or alleged victim) generally is not admissible in any civil or criminal proceeding involving sexual misconduct.

The exclusion applies to the use of such evidence for impeachment as well as substantive purposes.

Question 7

“Rape shield” exclusions: exceptions in criminal cases

Answer 7

In a criminal case, evidence of specific instances of a victim’s past sexual conduct may be admissible to:

(1) Show that the defendant was not the source of physical evidence—e.g., semen or bruises;
(2) Show the victim’s past sexual conduct with the defendant:
(a) to prove consent; or
(b) if offered by the prosecution.

In addition, such evidence may be admissible if exclusion would be “unfair” (in due process constitutional terms) to the defendant, e.g., as a curative admission.

Question 8

“Rape shield” exclusions: exceptions in civil cases

Answer 8

Evidence of the victim’s past sexual conduct or predisposition is admissible only if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Evidence of reputation is admissible only if the victim brings it up.

Question 9

Public policy exclusions: settlement negotiations in multiparty litigation

Answer 9

When there are more than two parties, a settlement agreement entered into by a party with an adverse party cannot be used by a remaining adverse party to prove or disprove the amount of an unsettled claim.