Public Policy Exclusions

Question 1

What is the consequence of public policy exclusions?

Answer 1

• Otherwise relevant evidence that is barred due to public policy to serve some greater societal purpose/goal.

Question 2

What is the subsequent remedial measures rule under Rule 407?

Answer 2

• Evidence of SRM is INADMISSIBLE to prove negligence, culpable conduct, design defect, or the need for a warning.
• Public policy is to encourage persons to fix dangerous conditions and make products safe.
  o EXAMPLE: A convenience store customer trips on a tear in the carpet and is injured. The store replaces the carpet to prevent subsequent injury to others. The customer is precluded from using the fact that the store replaced the carpet to show the store was negligent. This would place a chilling effect on good behavior.

Question 3

What are some exceptions to the subsequent remedial measures exclusion?

Answer 3

• (1) to show ownership or control if denied
• (2) to show feasibility of precautionary measures if denied
• (3) to impeach

Question 4

What is an example of the ownership exception to Rule 407?

Answer 4

• EXAMPLE: The plaintiff is hit by a truck with faulty brakes, after which the truck company repairs the brakes so that a similar accident would be prevented in the future. If the truck company claims it did not own the truck that injured the plaintiff, the plaintiff can introduce evidence that the truck company paid for repairs for the truck to suggest ownership.

Question 5

What is an example of the feasibility exception to Rule 407?

Answer 5

• EXAMPLE: The plaintiff is injured by manufacturer’s table saw designed without a safety blade guard. If the manufacturer defends claiming that at the time, the saw could not possibly have been made safer, the plaintiff can introduce evidence that the manufacturer redesigned the saw with a saw blade guard that was available at the time of the accident.

Question 6

What is an example of the impeachment exception to Rule 407?

Answer 6

• EXAMPLE: A car manufacturer is being sued for a problem with an accelerator sticking. The company’s head design engineer testifies that it was not the company’s fault because nothing could have been done to make the accelerator safer. If, in fact, the defendant did make some changes, the plaintiff may use evidence of the changes to impeach the witness.

Question 7

What is the settlement exclusion under Rule 408?

Answer 7

• Evidence of an offer to settle a civil claim, which is DISPUTED either as to validity or amount, and statements made in connection therewith are INADMISSIBLE to prove liability or amount.
• Why? Public policy is to encourage out-of-court settlement in civil cases and offers may be made merely to avoid the expense and hassle of litigation.

Question 8

Does the settlement exclusion apply only to the settlement offer?

Answer 8

• When applicable, rule excludes both the offer (“I’ll pay you $10,000 to settle this.”) and statements made in connection therewith, sometimes called “admissions of fact” (“because I shouldn’t have been drinking and driving.”).

Question 9

When may offers to settle or accompanying admissions of fact become admissible, contrary to Rule 407?

Answer 9

• Either or both may be admissible if offered to prove something other than claim validity or amount.
  o EXAMPLE: Some admissions in subsequent criminal or regulatory prosecutions; to prove bias of a witness; threats made in settlement negotiations; to prove bad faith in negotiations; to show notice; to show breach of settlement agreement; doc properly discoverable not excluded just because disclosed in settlement negotiations.

Question 10

What must be satisfied in order for offers to settle to be excluded from evidence under Rule 407?

Answer 10

• There must be a DISPUTE as to the amount of the damage or fault (liability). Either presented as words on the scene or the filing of a suit subsequently.
  o EXAMPLE: X and Y have a car accident. Assume the facts state that there’s a dispute as to fault between the two parties. X says to Y, “I may have been driving a little too fast (admission of fault), but you went through the red light. Anyway, I’m willing to settle this matter for $5,000.” Result - NEITHER the admission NOR the settlement offer is admissible.
  o EXAMPLE: X and Y have a car accident. X says to Y, “It was 100% my fault. You did nothing wrong. Because I was speeding (admission of fault), I’m willing to settle this matter for $5,000.” Result - There is no dispute as to liability and assuming there is no dispute as to amount, neither the settlement offer nor the admission of fact are excluded by this rule, though there may be some relevance issues on the amount offered.

Question 11

Could evidence of a settlement offer be used as a prior inconsistent statement for impeachment purposes?

Answer 11

• No, evidence excluded by Rule 407 may NOT be used as a prior inconsistent statement for impeachment purposes.

Question 12

What does Rule 409 say about offers to pay for medical and similar expenses?

Answer 12

• Evidence of offering to pay medical (hospital or similar) bills and paying them are INADMISSIBLE to prove liability for an injury

Question 13

Are admissions of fact made in connection with an offer to pay medical expenses also inadmissible under Rule 407?

Answer 13

• Any admissions of fact made in connection with this offer ARE admissible.
  o This is sometimes called the “Redaction Rule” because UNLIKE FRE 408, where the offer and anything else said accompanying that offer are inadmissible, FRE 409 only precludes the offer itself. Anything else is admissible.
• EXAMPLE: Same car accident from above, but this time the defendant says, “I was speeding a little (admission of fault), but you went through the red light. Anyway, I’m willing to pay your medical bills.” Result - The defendant’s admission of fault may be severed and is admissible. The offer itself is inadmissible.

Question 14

What does Rule 410 say about pleas, plea discussions, and related statements?

Answer 14

• A plea and any statements made during plea negotiations by a defendant to a prosecutor in a criminal proceeding will be inadmissible against the defendant in a later proceeding if the plea is:
  o not accepted by the court;
  o later withdrawn by the defendant; or
  o the defendant pleads nolo contendere (no contest).

Question 15

When would Rule 410 not apply, thus making plea negotiations admissible?

Answer 15

• This rule does NOT exclude this evidence if the plea is finally entered; there’s no need to exclude the statements once the plea is completed.

Question 16

For Rule 410 to exclude statements made during plea negotiations, does it matter to whom those statements are made?

Answer 16

• Yes. This rule does NOT exclude statements made to the police; it only excludes statements made to a prosecutor.
• EXAMPLE: An arrestee asks a police officer, “What kind of deal can I get if I confess?” The police officer says, “I can ‘put in a good word’ for you with the D.A.” This is not a plea negotiation because it was not made to a prosecuting attorney.

Question 17

What does Rule 411 say about liability insurance?

Answer 17

• Evidence that a person was or was not insured is INADMISSIBLE to prove negligence or fault.

Question 18

What are some exceptions to the general exclusion of liability insurance?

Answer 18

• Evidence of insurance against liability may be admitted for another purpose:
  o proof of agency;
  o ownership or control; or
  o bias or prejudice of a witness

Question 19

What are some examples of Rule 411 at work?

Answer 19

• EXAMPLE: The defendant denies ownership of the car involved in an accident. If the defendant has insurance on the car, that evidence would be admissible to prove ownership of the car, but NOT to prove negligence.
• EXAMPLE: If Defendant’s insurance agent testifies that she saw the accident, and it was not Defendant’s fault, evidence of Defendant’s insurance is admissible to show the agent may be biased