Rules 407 - 411

Question 1

Rules 407-411 all have in common:

Answer 1

Relevance rationale – is it probative/risk unfair prejudice?

Public policy rationale – we don’t want to discourage people from making repairs/settling/etc.

Evidence must first pass rule 401, then pass rules 407-411, and lastly pass rule 403

Question 2

Rule 407

Answer 2

Remedial means measures are taken that would have made an earlier injury or harm less likely to occur

Can’t be used to prove fault

But may be admitted for impeachment, and if ownership, control, or feasibility is disputed; not an exhaustive list, just examples

Plaintiffs would want to introduce these types of evidence as proof of an admission of guilt

Question 3

Rule 408

Answer 3

Bars compromise and attempt to compromise and conduct or statements made in negotiations to prove validity or amount of the disputed claim or to impeach a prior inconsistent statement

But this evidence may be used to prove a witness’s bias, or negate a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution

These are just examples offered in the rule; this type of evidence can be used for other reasons

Question 4

Does rule 407 apply to third party repairs and required repairs?

Answer 4

Most courts say that third party repairs don’t apply to rule 407 subsequent remedial measures, but then must pass rule 403

The same applies to required repairs (actual regulations or ordinances); many courts say rule 407 does not apply to them

Question 5

Does rule 408 apply to third party suits?

Answer 5

Most courts say that this rule applies to third party suits if it enhances or is consisted with the public policy rationale → because we want to encourage settlements, not to discourage them by allowing the settlements to be used against the defendant

Question 6

Rule 409

Answer 6

Evidence of paying or offering to pay medical expenses is not allowed to prove liability

It can be offered for any other purpose

Does not require a disputed claim

This rule does not bar any statements surrounding the offer or evidence of paying medical bills; only the actual offer or payment of medical bills to prove liability

Question 7

Subsequent remedial measures

Answer 7

When measures are taken that would have made an earlier injury or harm less likely to occur.

Question 8

Rule 411

Answer 8

Liability insurance; this rule covers whether or not a person is insured

This type of evidence cannot be used to prove negligence or wrongful behavior

But this evidence may be admitted (not an exhausted list) for proving a witness’s bias or prejudice, or proving agency, ownership, or control

We don’t want the jury to use this information to determine fault

Public policy: we want people to purchase insurance and we don’t want it to be held against them if they do have insurance

Question 9

Rule 410

Answer 9

This rule bars evidence against the defendant of withdrawn guilty pleas, no contest pleas, statements in Rule 11 proceedings, and statements in plea discussions with the prosecuting attorney that do not result in a guilty plea

Does not apply to completed guilty pleas

This evidence does not come in for any reason, except for the two stated exceptions

Exceptions:

1. If another statement was introduced that ought to be considered together with the evidence
2. Or in a criminal proceeding for perjury

Prosecutors can get a waiver so before they enter into negotiations, they make defendant sign so they can use that evidence later