E&E Character Evidence Flashcards
Consider the following chronology:
March 99: carpenter bought a power tool
April 99: tool company redesigned that product incorporating a finger guard
May 99: carpenter fingers were injured while she was using the tool
In a suit against the tool company, seeking damages under negligence and strict liability theories, can the carpenter introduce evidence of the April product improvement to show that the product as sold to her was defective or carelessly designed?
This example concerns the general prohibition against using evidence of subsequent remedial measures to prove negligence or strict liability for product-related injuries. The defendant made the design change in this problem subsequent to the purchase but prior to the injury. The language of Rule 407 shows that the time of injury is what counts, not the time of manufacture or sale of the product. If the change had been made after the injury, evidence of the change would have to be excluded, because the plaintiff was seeking to introduce the evidence to show negligence and strict liability. But the change was made before the injury, so evidence about it can be admitted for any purpose.
The example also serves as a reminder that strict liability actions are thought by some state courts (a small minority) to be outside the coverage of their versions of Rule 407. In part the responses of courts to this problem have reflected their general point of view on the underlying issue of whether evidence rules can have an important effect on willingness to adopt safety measures. The courts that believe the exclusionary rule really affects people’s and companies’ plans for remedial measures will be inclined to apply the rule broadly to negligence and strict liability cases. In a jurisdiction that applies the rule only to negligence cases, the material could be admitted with an instruction that the jury consider it only in deciding the strict liability aspects of the case.
A customer says to a used car dealer, “I’m sorry I haven’t made the last payment, and I have to admit the car runs fine, but I just can’t afford it. I owe you $800 more, but will you accept $450?” In a later suit for the full $800, the customer claims he should not have to pay anything because the car was defective. To establish that there was nothing wrong with the car, can the dealer testify that the customer told him the car was fine?
Yes. Attempting to whittle down the amount of an acknowledged debt is not the kind of conversation the rule against disclosure of settlement talks seeks to encourage. Rule 408 covers only statements and conduct in connection with claims that are disputed either as to validity or amount. In this example, there is no dispute about the quality of the car or about the total amount ($800) that is owed.
Plaintiff sues defendant for money she claims is due under the terms of the settlement of a prior suit. How can the plaintiff establish her claim in the light of Rule 408’s prohibitions about evidence of settlements?
The plaintiff is entitled to introduce evidence of the settlement agreement. Rule 408 only precludes admission of evidence about settlements or settlement talks if the evidence is introduced as relevant to the validity or invalidity of the underlying claim that is the subject of the negotiations. In this example, the claim is not based on whatever dispute led to the settlement. It is based on a contractual undertaking (the settlement), which can be interpreted and enforced by a court without any attention to the original dispute that it was intended to resolve.
In a malpractice case, the plaintiff wants to establish that the defendant doctor made a mistake in an operation by testifying that when the doctor looked at an X-ray of the plaintiff taken after the operation, he said, “This makes it look like I did the whole operation wrong.” The defendant doctor objects to the testimony, claiming that it should be excluded under Rule 408 because when he said it he suspected that the patient might sue, and he wanted to establish a rapport that would help reach a compromise. Should this testimony be kept out under Rule 408? Should the judge or the jury make the decision?
This is a reminder that the judge ordinarily has the responsibility to make preliminary rulings personally. Here the judge will decide whether the conversation is within Rule 408’s characterization of compromise negotiations. If this task were assigned to the jury, jurors would listen to evidence about the challenged statement and the context in which it was made. Then the judge would tell them about Rule 408 and would tell them to ignore the statement if they concluded that it was made in the context of compromise negotiations. It might be hard for a juror to forget about the doctor’s words, even if the juror did conclude that they had been spoken in settlement talks.
The evidence should be admitted. The only suggestion that the doctor’s words were part of settlement negotiations comes from the doctor’s statement that he suspected a suit might someday be filed. This does not satisfy the requirement in Rule 408 that a dispute be involved. Furthermore, compromise negotiations must take place in order for Rule 408’s protections to be invoked. If the doctor’s own predictions about litigation were permitted to turn his words into protected statements for the purpose of settlement, just about any words anyone ever says to a person who later sues him would be inadmissible at trials.
This is not a conditional relevance situation where the judge is required to let the jury do part of the work of deciding the fundamental relevance question. For conditional relevance, an item of evidence could be relevant to the trial as long as some additional condition was believed to have existed. Conditionally relevant evidence has a place in the trial if the result of some factual inquiry provides a logical link between the offered evidence and an issue at the trial. This is different from the Rule 408 problem, in which the doctor’s words could be let in or kept out depending on the outcome of the factual issue about whether they were spoken in a compromise effort. There is a difference between (a) conditional relevance where the jury gets the initial item of evidence and then decides itself whether to use it and (b) most preliminary admissibility questions. For conditional relevance, if the additional required condition is not fulfilled, there is no risk that the jury will use the originally offered evidence, because it contradicts common sense to base a decision on nonrelevant information. In other situations, like those covered by Rule 408, it would definitely not contradict common sense or human nature for a juror to base a decision on significant words, even if principles based on independent social policies led the judge to instruct the jury to ignore them.
After an accident at a railroad crossing, the state highway department cut down trees that obstructed the view of the tracks from the road. The person injured in the accident sues the railroad, claiming that the intersection was dangerous and that therefore the railroad should have instructed its engineers to slow down when they approached it. Can the plaintiff introduce evidence about the highway department’s action as relevant to the dangerousness of the intersection prior to the accident?
Yes. Ordinarily evidence of subsequent remedial measures cannot be introduced to support contentions about the quality of an actor’s conduct at the time of an earlier injury. However, in this situation, the remedial measures were carried out by someone other than the defendant. Keeping them secret from the jury would not serve the public policy goal of avoiding “penalizing” those who make post-accident repairs. For that reason, most courts would admit the evidence.
In a products liability suit, the plaintiff seeks to establish that a machine’s design was unreasonably dangerous. If the manufacturer added a safety feature after the plaintiff’s injury, Rule 407 prohibits introducing evidence of the change to establish negligence, culpable conduct, or product defectiveness. Suppose a witness for the manufacturer states that the product’s safety features, as present in the model that injured the plaintiff, were “the best possible” or “of the highest quality.” Could that provide an avenue for bringing information about the subsequent changes into the trial?
Yes. Rule 407 prohibits the use of information about subsequent remedial measures to show culpability, negligence, or product defectiveness. It states explicitly, however, that this kind of material may be introduced for other purposes. One of the purposes listed is to show the feasibility of precautions when the defendant disputes or controverts that feasibility. The analysis of this example depends on whether the statements “highest quality” or “best possible” are equivalent to claims that there were no feasible alternatives. Many courts would characterize them that way and allow the plaintiff to introduce evidence of subsequent improvements to demonstrate that the prior design was not the “best possible” or of the “highest quality.” On the other hand, if the defendant’s witnesses had merely described the prior design as “good” or “excellent,” it would be difficult for the plaintiff to contend that they had controverted the feasibility of alternatives.
Andrew First and Bertha Second were walking across an intersection when they were both hit by a truck operated by defendant Cash Corporation. They were each hospitalized, and each accepted payments from Cash Corporation for the medical expenses. First later sues Cash. If Second testifies at the trial that Second and First were talking while they crossed the street and were not particularly attentive, could First introduce evidence that Cash paid Second’s medical bills?
Yes. The point of introducing the evidence would be to show that Second might be biased in favor of Cash Corporation. This use of the payment information is not barred by Rule 409 even though it does exclude evidence of medical payments if the evidence is introduced to show liability for the injury. Here the rationale for introducing the evidence is to show possible motivation for Second to lie or shade the testimony favorably to Cash. The evidence would be admissible, and Cash would be entitled to a limiting instruction telling the jury that it could not infer from the fact of payments to Second that Cash was responsible for the accident.
In a medical malpractice case, an expert testifies that in his opinion, based on an examination of the plaintiff, the defendant never injured the plaintiff. If the expert works for an insurance company that would be responsible for paying a judgment against the defendant doctor, can the plaintiff bring that fact to the attention of the jury?
Yes. This would be a reference to insurance not to show culpability but to show that the witness might be biased to give testimony that favors his employer, the insurance company.
A 60-year-old man is on trial for sexual assault on a 14-year-old girl. The prosecution knows that he was once married to a woman significantly younger than he was and that he has also had consensual sexual relations on several occasions with women much younger than himself. If the defendant denies committing the charged crime, can the prosecution introduce evidence about his past marriage and other sexual conduct?
The only logical relevance the information has to the prosecution claim is that it could lead a jury to think of the defendant as typically interested in sexual relations with women much younger than himself and that this belief could support an inference that on a particular occasion the defendant acted in conformity with that interest. This would be an instance of the forbidden propensity inference and could not be a basis for admitting the evidence in federal court. In some states there is an exception to the propensity prohibition for evidence that shows characteristic sexual depravity. While those states will not allow evidence of past robberies to be introduced in a defendant’s trial for a current robbery, in a trial for a sex offense they will admit evidence of past sexual offenses on the theory that they show something about the defendant’s sexual character that can reliably be a basis for decision in the current case.
As part of its case in a bank robbery trial, the prosecution produces testimony of an eyewitness that the robbers fled the bank in a blue Chevrolet. The prosecution seeks to introduce evidence showing that the defendant had stolen a blue Chevrolet an hour before the bank robbery. In what context might this evidence be admissible, despite the general prohibition of propensity character evidence?
Stealing a car could be treated as evidence showing a plan to rob a bank rather than as evidence that only has relevance to support an inference of the actor’s bad character. The prosecution might be able to persuade the judge that the use of stolen cars in robberies is common enough so that a car theft can properly be linked to a later bank robbery as an element of a common plan.
Additionally, if a witness saw the defendant steal the car and can thus identify the defendant in connection with that car, and if the witness to the robbery can identify the car but does not have the ability to identify the defendant, then the evidence linking the defendant to the car would be relevant as identification evidence. Showing the defendant’s connection, then, to the earlier car theft would be for the purpose of providing circumstantial evidence of his identity as the person who robbed the bank.
In a defamation trial, the plaintiff seeks to prove that the defendant called him a barbaric skinflint, in order to recover damages for that defamation. The defendant admits having described the plaintiff that way but asserts the defense of truth. May the defendant introduce evidence that the plaintiff has a reputation as a cheapskate? May the defendant introduce testimony about specific acts of cruelty the plaintiff has committed against animals?
Yes. The point of using testimony about either reputation or past acts of the plaintiff would be to support a jury inference about his character. Since the plaintiff’s character is itself an issue under the substantive law of defamation, the propensity rule has no impact on the case. Note that the theory of relevance rejected by the propensity rule would be the following: After the jury concluded something about the plaintiff’s character it then went on to infer that because the plaintiff had a certain character the plaintiff probably acted in conformity with it on a specific occasion. That conclusion is not required for the defendant’s defense of “truth” in the defamation case. The possibility that the jurors might reach such conclusions does not eliminate the legitimate possible use of the material that is justified by the relevance of character in defamation.
The treasurer of a charitable organization is accused of embezzlement. Large sums of money under her control have disappeared, and she has adopted a lifestyle seemingly far more costly than her earnings would allow. In a criminal prosecution for embezzlement, may the prosecution introduce evidence that the defendant has lied to a university in applying to graduate school and has been convicted of bigamy?
No. A common mistake in this situation is to notice that embezzlers are usually corrupt and deceitful people and to jump to the wrong conclusion that “deceitful character” is an element of the charged crime. To put you in jail for embezzlement, the prosecution does not have to show that you are generally a lying or stealing type of person. All the prosecution is required to do is show (beyond a reasonable doubt) that you took money that didn’t belong to you. People of generally honest character may sometimes be embezzlers and so may people of criminal dispositions. But no principle of substantive criminal law establishes, as an element of the crime of embezzlement, that “bad character” is required to be shown to support a conviction. Therefore, Rule 404(a) prohibits use of this evidence.
The defendant is on trial for murder, accused of shooting the victim with a rifle. If there is evidence that a year earlier he had attempted to poison someone, can the prosecution plausibly argue that it should be allowed to introduce that evidence as relevant to the defendant’s intent or identity?
The only way the past poisoning attempt would show “intent” on the occasion of the shooting incident would be if the jury reasoned that a person who tries to poison someone has an evil or murderous character and that having such a character makes it likely that on another occasion he acted in conformity with it. This is the prohibited propensity inference. Another facet of this example that makes its resolution easy is that the issue of intent can be dealt with clearly from the explicit facts of the case, namely the use of a rifle for shooting at the victim. Where conduct is ambiguous, there may be greater latitude for allowing introduction of earlier instances of similar conduct to shed light on the probable facts of the conduct on the specific occasion that is being evaluated at the trial.
Facts about the past poisoning attempt can identify the defendant as the shooter only if the jury makes the propensity inference. The past poisoning incident by the defendant makes it likely that he was involved in the shooting only if it is used by the jury as a basis for a belief that the defendant is a murdering type of person. Information about past acts known to have been committed by someone accused of a new offense can show the identity of the accused as the actual wrongdoer only if the new offense and the past acts have very strong similarities. Thus, if someone who has in the past committed crimes with a distinctive method or “signature,” that fact will be admissible in a trial where he or she is accused of committing a new crime in that specific way. It shows the defendant’s likely participation in the new crime without requiring a jury to reason that because he or she committed the past crimes, the defendant probably has character traits that support an inference of guilt.
A patient sues a doctor, claiming that the doctor carelessly forgot to warn the patient about side effects from a prescription drug. The doctor claims that she did give the patient that information. Can the doctor testify that she is very careful in all her work and therefore must have given the proper warnings? Can she testify that whenever she hands a prescription to a patient she shows the patient the name of the drug on the prescription and discusses how to take the medicine and what risks are involved in it?
Testimony that she is “always careful” would be kept out. It describes the doctor’s character trait of being responsible and nonnegligent, and for that reason is excluded from the trial if sought to be introduced to support the conclusion that on a specific occasion the doctor acted in conformity with that character. Could “being careful” be treated as a habit? To do that would be to eliminate almost all of the propensity bar since most traits of character could be described as habitual ways of being. The second kind of testimony in this problem, that the doctor gives warnings when she hands patients prescriptions, describes what the Federal Rules intend to characterize as a habit. The conduct is routine, repeated often, and does not involve reflection.
D is on trial for shoplifting, specifically for stealing a magazine from a large drug store. He claims that he had bought a large number of items, and that the owner of the store, after accepting payment for those items, said to him, “Help yourself to a magazine on the way out.” He would like to introduce testimony from witnesses showing that in the past the owner had sometimes offered free boxes of candy to three or four customers in a single day. Is this “character” evidence? Is this evidence admissible?
This testimony could support an inference that the owner is generous. If the defendant wanted the trier of fact to infer from the owner’s generosity the idea that he acted generously on a specific occasion, this is precisely the type of inference the propensity rule prohibits. Could this evidence be treated as “habit” testimony? That approach would fail since the process of offering free candy involves a lot of conscious volition, was apparently infrequent, and was not shown to be a nearly automatic response to virtually every occurrence of a particular circumstance. Furthermore, the defendant is not interested in establishing that the defendant offered him candy since he is charged with stealing a magazine.
