Quasi Privileges, Other Exclusions of Evidence: 407, 408, 409, 410, 411

Question 1

What does Rule 407 say?

Answer 1

Rule 407: Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measure is not admissible to prove: 
\+ negligence
\+ culpable conduct
\+ defect in a product or its design
\+ a need for warning or instruction

Question 2

Can a court admit subsequent remedial measure evidence to show something other than to show negligence, culpable conduct, defect in a product/design, need for warning or instruction?

Answer 2

YES

R. 407 does not allow for evidence of subsequent remedial measures to show negligence,
BUT…

A court may admit the evidence for another purpose, such as:
+ impeachment
+ if disputed, proving ownership, control
+ feasibility of precautionary measures

Specific admissible purposes are non-exhaustive: must be a real controversy about one of the listed issues to justify admissibility

Question 3

Why would a court exclude evidence beyond character?

Answer 3

+ If admitted, certain evidence will mislead the jury or otherwise impede an accurate and efficient search for the truth.

+ Probative value minimal: “because the world gets wiser as it gets older therefore it was foolish before”

+ Partly to encourage remedial measures

Question 4

What is the difference between privileged and quasi privileged evidence? What are some of the rules for quasi-privileges.

Answer 4

1) Privileges: Exclusion of evidence will promote some public policy that has little to do with the “truth” in a specific case.
+ Illegally seized but highly probative value evidence is often thought to encourage police to respect individuals’ Fourth Amendment right to be free from unreasonable searches and seizures

2) Quasi-privileges: serving both the determination of the truth and external public policy goals
+ R. 407: Exclusion of much evidence of subsequent remedial measures
+ R.408 and R.410: Exclusion of evidence of compromise negotiations
+ R. 409: Bar on admitting evidence of offers to furnish, payment of, a person’s medical expenses to prove the offeror’s liability for the injury
+ R.411: Bar on admitting much evidence that a person was insured against liability

Question 5

Hypo: P attends a party hosted by D, where she slips on the tile floor and injures her back. After P’s injury, D replaces the tile floor with carpet. P sues D for negligence, having hosted a party with slippery tile floors. P wants to introduce evidence that D replaced the tile floor with carpet and D objects. How should the court rule?

Answer 5

Objection: subsequent remedial measure
Response: offering evidence to prove D’s negligence
Ruling: sustained under R.407.

Objection: subsequent remedial measure
Response: Offering evidence to show that D owned the home where the accident took place which would render him responsible for its condition – ownership must be “controverted.”
Ruling: If D denies owning the home (“I rented the house for the party” or “I was housesitting for my friend and decided to throw a party”) there is a dispute and the objection would be overruled.
Ruling: If D admitted to owning the house, there would be no controversy and the objection should be sustained.

Question 6

When is a remedial measure “subsequent”?

Answer 6

Changes made after occurrence that produced the damages giving rise to the action

Evidence of measures taken by D prior to the event do not fall within the exclusionary scope of R.407, even if they occurred after the manufacturer or design of the product

Question 7

D drove a Volvo truck with a rear end at the hight of the heads of the drivers of most ordinary cars. One day D made a lane change without signaling and P ran into D with his car, instantly decapitating P. Before the accident between P and D, Volvo realized that this model of truck created a decapitation danger, as many other Volvo trucks had been involved in accidents similar to P and D’s, so Volvo issued a recall and installed safety bars on all but one truck—the one that D drove when P was decapitated. P offered evidence of the safety recall and safety bar installation on other trucks to prove D’s negligence and D objects.

How should the court rule?

Answer 7

D’s Objection: Subsequent remedial measures
P’s response: Remedial measures while “subsequent” to the “manufacture or design of the product” were not “subsequent” to the “occurrence that produced damages giving rise to the action”
Rule: Overruled by R.407 exception

Question 8

What does Rule 408(a)(1) say?

Answer 8

Rule 408: Compromise offers and negotiations
(a) Prohibited uses.
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
+ Impeach by a prior inconsistent statement or a contradiction

(1) Furnishing, promising, or offering – or accepting, promising to accept, or offering to accept – a valuable consideration* in compromising or attempting to compromise the claim

Question 9

What does Rule 408(a)(2) say?

Answer 9

Rule 408: Compromise offers and negotiations
(a) Prohibited uses.
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
+ Impeach by a prior inconsistent statement or a contradiction

(2) Conduct or a statement made during a compromise negotiations about the claim – except
+ When offered a criminal case and
+ When the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority

Question 10

What does rule 408(b) say?

Answer 10

Rule 408: Compromise offers and negotiations
(b) Exceptions (to prohibited uses of compromise offers and negotiation evidence)
The court may admit this evidence for another purpose, such as proving
+ A witness’ bias or prejudice
+ negating a contention of undue delay
+ proving an effort to obstruct a criminal investigation or prosecution

Question 11

Does R.408(a) apply to informal discussions?

Answer 11

Yes!

Question 12

What is the policy behind Rule 408?

Answer 12

+ Evidence is irrelevant since offer may be motivated by a desire for peace rather than from any concession of weakness of position

+ Validity varies as the amount of the offer varies in relation to the size of the claim, may also be influenced by other circumstances

+ Promotion of public policy favoring the compromise and settlement of disputes

Question 13

Is the application of R.408(b) very common?

Answer 13

Steinhauser: exceptions very rarely applied

Question 14

P is dying from lung cancer and sues a cigarette manufacturer, alleging that the manufacturer knew of the dangers of cigarettes and did not adequately warn consumers despite the manufacturer’s knowledge that smoking cigarettes and lung cancer were causally connected.

During settlement negotiations, the manufacturer concedes a single study conducted by the company 40 years ago concludes that cigarettes could cause lung cancer but denies that this single study proves the manufacturer’s “knowledge.” The manufacturer did not produce this report in discovery, despite P’s request. The manufacturer’s attorney offered $1 million to settle the suit. P declines the offer and walks away from settlement negotiations, so the case goes to trial. P wants to introduce the report discussed in negotiations and the manufacturer objects.

How should the court rule?

Answer 14

Objection: Prohibited compromise/negotiation communication
D’s response: R.408 prevents introduction of the $1 million offer or the report if the evidence is used to prove
(1) the manufacturer is liable for failing to convey adequate warnings of cancer to its customers
(2) The manufacturer caused P to suffer at least $1 million in damages
Ruling: sustained

Question 15

Columbia House Records sends Martha Evans a collection letter for $5K, for CD’s she ordered at her request. Martha Evans calls Columbia house and admits she owes them $5K, but says it won’t cost her much to contest this in court and represent herself. She offers to pay Columbia House $3K instead and nothing more than that amount. Columbia House rejects her offer, files a complaint and seeks to use her $3K settlement offer and admission of $5K liability against her at trial. Martha objects. How should the court rule?

Answer 15

Objection: Settlement negotiation/quasi-privilege
Response: Negotiation statements concerned a matter not seriously disputed as either the validity of the claim or the amount. Overruled.
R.408 Purpose: Civil settlements, offers, and statements during compromise negotiations are not excluded UNLESS proving the validity or liability of the claim then in dispute
No dispute about the amount owed
Ruling: Overruled

Question 16

The Federal Railroad Administration (FRA) assessed a civil fine against D Railroad Company for violating federal railroad safety regulations. D Railroad Company disputes whether it has engaged in any violations at all and the amount of the fines. FRA’s attorney enters into negotiations with D Railroad Company. During negotiations, D Railroad Company’s CEO admits to knowing that certain safety violations have caused an engineer’s death, but did nothing to correct the violations because it would cost more to do so than simply pay a fine. When a second engineer died, D Railroad Company corrected the violation issues and D agrees to settle with the FRA for 50% less than the FRA initially sought. The U.S. Attorney’s Office files a negligent homicide case against D and seeks to introduce testimony from the FRA/D Railroad negotiations.

D objects under R.408. How should the court rule?

Answer 16

Objection: statements made during compromise negotiations
Response: Under R.408(b) because D’s statements were made during a compromise of a civil claim “by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.” R. 408(a) only applies to civil negotiations.
Ruling: Overruled

Question 17

D is involved in an auto accident where he hit another car at high speed and injured P. P sues D for damages caused by D’s negligent driving. The suit turns on whether D ran a red light. During settlement negotiations, D admits he ran the right light. Despite this, no settlement agreement can be reached. The case goes to trial and when D takes the stand, he claims that the light was green. P’s counsel seeks to cross-examine D with reference to his admission during settlement negotiations that the light was red, not green. D’s counsel objects. How should the court rule?

Answer 17

Objection: improper use of compromise/negotiation settlement statement
Response: the statement is simply being offered to impeach by a prior inconsistent statement not to prove valid or invalidity of claim or amount.
Ruling: Sustained under R.408, as (1) and (2) are met and the evidence would be used to contradict D’s prior inconsistent statement

Question 18

The Federal Railroad Administration (FRA) assessed a civil fine against D Railroad Company for violating federal railroad safety regulations. D Railroad Company disputes whether it has engaged in any violations at all and the amount of the fines. FRA’s attorney enters into negotiations with D Railroad Company. During negotiations, D Railroad Company’s CEO admits to knowing that certain safety violations have caused an engineer’s death, but did nothing to correct the violations because it would cost more to do so than simply pay a fine. When a second engineer died, D Railroad Company corrected the violation issues.

The family of the second engineer killed brought a civil suit for wrongful death against the railroad. No settlement agreement is reached and the case gets scheduled for trial. In the meantime, the local prosecutor’s office brings criminal charges against D Railroad for negligent homicide. At the criminal trial, D objects to the family members (the ones present at negotiation conversations) testifying to the CEO’s statements made during negotiations. How should the court rule?

Answer 18

Objection: statements made during negotiations
Response: R.408 generally bars admission of offers to settle, settlements, or statements made during civil settlement negotiations to prove fault or guilt respectively at any later civil or criminal trial OTHER THAN where the later criminal trial involves offering statements made during civil negotiations with a government or regulatory, investigative, or enforcement agency
Ruling: Sustained, because the negotiations were not with a regulatory/gov agency, it was between D Railroad and the engineer’s family.

Question 19

When does R.408 bar using settlement/compromise evidence to impeach a witness? Why? Does it matter if a plaintiff or defendant is introducing the evidence?

Answer 19

When: requirements for R.408 (1) and (2) are otherwise met, R.408 bars using settlement offers or statements made during them to impeach IF the impeachment method is by contradiction or use of a prior inconsistent statement.

Why? Such broad impeachment would tend to swallow the exclusionary rule and impair public policy

Who: Excludes compromise evidence presented by either P or D

Question 20

What does R.409 say?

Answer 20

R.409: Offers to pay medical and Similar Expenses
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 21

D rear ends P and when P exits the car, she complains of back pain. D responds, “Don’t worry, I’ll get you immediate medical care. And if your insurance company won’t pay for it, I will.” Will D’s statements be included at trial?

Answer 21

Objection: Improper evidence – offer to pay medical and similar expenses
Response: Use evidence to recover damages from D
Ruling: Sustained

Question 22

What is the makes R.409 different from R. 408 and R. 410?

Answer 22

R.409 different from R.408 and R.410: Does not extend to “conduct or statements not a part of the act of furnishing or offering or promise to pay”

Question 23

D rear ends P and when P exits the car, she complains of back pain. D responds, “I’m so sorry. It’s all my fault. I shouldn’t have tailgated you. Don’t worry, I’ll get you immediate medical care. And if your insurance company won’t pay for it, I will.” Will D’s statements be included at trial?

Answer 23

Objection: statements made to pay for medical evidence
Response: Use evidence to recover damages from D, admission of fault
Ruling: partially sustained, partially overruled. R.409 will not allow for the offer for medical expenses but will allow for admissions of guilt. Note that a court can exclude all statements for R.403.

Question 24

What does Rule 410(a)(1)-(4) say?

Answer 24

Rule 410: Pleas, Plea Discussions, and Related Statements
(a) Prohibited Uses.
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 plea;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; 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 a la

Question 25

True or false: Rule 410(a) applies to civil cases only

Answer 25

False. R.410(a) applies to civil and criminal cases.

Question 26

Does R.410(a) apply to plea negotiations with police officers?

Answer 26

No. R.410(a)(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 a later-withdrawn guilty plea.

Question 27

What does Rule 410(b) say?

Answer 27

R. 410 Pleas, Plea Discussions, and Related Statements
(b) Exceptions (to Prohibited uses)
The court may admit a statement described in 410(a)(3) and 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 counsel present.

Question 28

What are the differences between R.410 and R.408?

Answer 28

R.408 Bars statements made during negotiations with any person involved in the case
R. 410 Negotiations are protected only if they are made with the prosecutor only
+ Statements to police are outside R.410’s scope
+ Does not include negotiations between D and interrogating police
R.410 Broader protection for evidence of a guilty plea later withdrawn and nolo pleas
+ Excludes guilty please or nolo please for any purpose whatsoever with few exceptions

Question 29

Can the right to protect the communications in plea discussions under R.410 be waived?

Answer 29

D may waive the right to the rule’s protection if prosecutor insists on such a waiver as a pre-condition of plea negotiations

Question 30

What does R.411 say?

Answer 30

R. 411: Liability Insurance
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.

Steinhauser: can’t ever be used, period.