Categorical Exclusion of Relevant Evidence (Step 2.A) - 1Public Policy-based Exclusions

Question 1

Public Policy-Based Exclusions

Answer 1

The legislator restricted the judge’s discretion

Question 2

FRE 407

Subsequent Remedial Measures

Answer 2

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove

• negligence,
• culpable conduct,
• a defect in the product or its design, or
• a need for warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or – if disputed – ownership, control or the feasibility of precautionary measures

Question 3

Rationales for FRE 407

Answer 3

• Incentive to defendants to make repairs
• Protect the jury from unreliable information
• The jury may use subsequent remedial matters as proof of guilt

Question 4

Incident Reports and Government-Mandated Improvements

Answer 4

They are not excluded under FRE 407

Question 5

FRE 409

Offers to Pay Medical Expenses and Similar Expenses

Answer 5

Evidence of furnishing, promising to pay, or offering to pay medical, hospital or similar expenses resulting from an injury is not admissible to prove liability for the injury

Question 6

FRE 409 Examples and Policy

Answer 6

Some examples of similar expenses are psychological expenses, lost wages, etc.

The policy is the healthcare system is really expensive, so we want people who can pay for another to pay and we don’t want the jury to see that as an admission of guilt.

Question 7

FRE 411

Liability Insurance

Answer 7

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership or control.

Question 8

Liability Insurance

Answer 8

• Insurance that covers you if you get sued and found liable.
• Bodily injury insurance covers you if you cause an accident and hurt someone
• Property insurance you if you cause an accident and damage someone’s property

Question 9

Policy Behind FRE 411

Answer 9

The mere fact of having liability insurance could be perceived as an admission of guilt and not having it could be seen as reckless. We don’t want the jury to make those inferences.

Question 10

FRE 408(a)

Compromise, Offers and Settlements

Prohibited Uses

Answer 10

Evidence of the following is not admissible – on behalf of any party – either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

1. Furnishing, promising or offering – or accepting, promising or offering to accept – a valuable consideration in compromising or attempting to compromise a claim; and
2. Conduct or a statement made during compromise negotiations about the claim – except when offered in a criminal case and when the negotiations related to the claim by a public office in the exercise of its regulatory, investigative or enforcement authority

Question 11

Ways to Keep out Evidence Admissible Under FRE 411

Answer 11

If the proponent of the evidence says it’s for a purpose allowed under FRE 411 but the judge doesn’t believe him, she can keep it out using FRE 403 or provide a limiting instruction using FRE 105

Question 12

FRE 408(b)

Compromise, Offers and Settlements

Exceptions

Answer 12

The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Question 13

FRE 408(a)(2) Exception Explained

Answer 13

• Government agencies will often try to enforce regulations via litigation. If the defendant lies in these types of settlement talks, that can be use in future cases.
• The policy behind this is while society encourages settlements, we don’t want people to lie to the government.
• This exception tells us FRE 408 can be use in civil and criminal cases.

Question 14

FRE 410(a)

Pleas, Plea Discussions and Related Statements

Answer 14

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussion:

1. A guilty plea that was later withdrawn
2. A nolo contendere (no contest) plea
3. A statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or
4. A statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in later-withdrawn guilty plea.

Question 15

FRE 410(b)

Exceptions

Answer 15

The court may admit a statement described in Rule 410(a)(3) or Rule 410(a)(4):

1. In any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together or
2. In a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record and with council present

Question 16

Nolo Contendere Pleas

Answer 16

Pleas of nolo contendere are not an admission of wrong-doing and so cannot be used in future civil cases.

Question 17

Pleas Implied Admissible by FRE 410

Answer 17

Not-guilty pleas and guilty pleas that are not withdrawn are admissible

Question 18

Waivers for FRE 407-411

Answer 18

• Most of the protective provisions of the five public-policy categorical exclusions can be waived by the party against whom such evidence is being offered.
• Such waivers increasingly play a role in the plea bargaining process where prosecutors often seek a waiver of FRE 410 before engaging in plea discussions.

Question 19

Use of FRE 407-411 in Civil v. Criminal Cases

Answer 19

• Subsequent remedial measures, liability insurance, and payment of medical expenses are prohibited in civil cases and it’s unclear if they can be used in criminal cases
• Settlements are prohibited in civil cases and most criminal cases.
• Pleas are prohibited in all cases

Question 20

Use of FRE 407-411 to Prove Substantive Issues

Answer 20

• Subsequent remedial measured cannot be used to prove negligence, culpable conduct, a defect in a product or its design, or a need for warning or instruction but can be used to prove other issues, if they are disputed.
• Liability insurance cannot be used to prove whether a person was negligent or acted wrongly but it can be used to prove other liability issues.
• Payment of medical expenses cannot be used to prove liability of injury but can be used to prove other liability issues
• Settlements cannot be used to prove liability or damage issues but can be used to prove other issues, such as obstruction
• Plea bargains cannot be used to prove most issues, except when a statement in the plea or discussion has been introduced or in a criminal proceeding for perjury or false statements.

Question 21

Use of FRE 407-411 for Impeachment

Answer 21

• Subsequent remedial measures, liability insurance, and payment of medical expenses can be use for any impeachment use, except probably not impeachment by contradiction
• Settlements can be use for any impeachment purpose, except prior inconsistent statements or contradiction
• Pleas cannot be used for impeachment