EVIDENCE NOTES8

Chapter 6: Relevancy Revisited I. SUBSEQUENT REMEDIAL MEASURES: a. 403: Judge has discretion to exclude evidence if probative value is outweighed unfair prejudice; confusing the issues; misleading the jury; undue delay; waste of time; needlessly cumulative [Judges can vary on what evidence is admitted] b. 407: Subsequent Remedial Measures—When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. i. Excludes subsequent remedial measures if used to show fault, but does NOT exclude them if they have another valid purpose… ii. Justification: 1. Tort policy—encourage people to do things to make their products safer a. Won‟t hold them liable for fixing b. E.g.—P can‟t say you fixed this right after it hurt me = NOT allowed 2. Fixing is NOT always an admission of fault and should NOT be taken this way by the jury iii. Cal.—Ault case makes it clear that subsequent remedial measures does NOT apply in products liability cases [does apply in 407 products liability cases]…view is that don‟t need to restrict evidence because manufacturer of mass products will always have incentive to make safer products and if they don‟t they will be forced by increased future litigation [unnecessary to exclude evidence of subsequent remedial measure] iv. Bringing action under Federal Tort Claims Actproducts liability case can NOT offer change in manufacture; design or warning labels [might have negative impact on encouraging manufacturers to make products safer] v. However, 407 won‟t necessarily apply in federal court if diversity and NOT procedural, will refer to state law where choice of law [could be allowed!!] c. Problems: i. 6-1: Off-Track RR train crashed in Indiana…subsequently (1) fired chief engineer and (2) generated postaccident study, which was practice after every crash [derailments usually]study offered in evidence brought by 3 passengers injured in crash: 1. Firing is barred by 407 [looks like company determined that employee is at fault] = firing of employee is subsequent remedial measure 2. Post accident study does NOT really look like subsequent remedial measure a. Uniform practice of studies does NOT look like admitting guilt because they always do it b. Probably admissible under 407 ii. 6-2: Patron scratched by rose bush on way into restaurant…patron brought action against restaurant for damages resulting from injuries, claimed restaurant negligent in failing to maintain clear walkway, restaurant claimed bust NOT on property and NOT responsibility…trial P permitted to show that D hired workers to clip branches after incident occurredD has denied control = would be impeachment if testifies or way of meeting defense that has been revealed in discovery…407 does NOT exclude, therefore admissible iii. 6-3: B purchased pair of hedge shears and injured while using to trim hedges…brought suit claiming design defect caused accident, shortly after filing suit D company changed designNOT admissible under 407, however if in jurisdiction where Cal. law applies would be admissible iv. 6-4: M sued Elks Club after falling on wet pavement outside entrance, claimed club negligently maintained walkway, defended by asserted that NOT slippery at night and fall was M‟s fault…in rebuttal M offered evidence that on day after fall Club put up sign saying “Careful! Walkway Slippery When Wet!”…M claimed evidence shows Club owned property where she slippedM claiming that NOT using as subsequent remedial measure…problem with proving ownership is that it is NOT disputed = irrelevant to the action…NOT an issue in dispute!! 1. Irrelevant for purpose, clear that only wants in for subsequent remedial measure to prove fault 2. Even if evidence could be admissible…could argue that probative value is substantially outweighed by danger of confusing the issues or unfair prejudice [403] v. 6-5: K slipped on patch of ice immediately outside Diner…B was proprietor of Hair and Nails, store adjacent to Diner…B observed K‟s fall and became concerned others would trip and fall…B put up a sign adjacent to Diner‟s sidewalk stating, “Beware of Ice!”…K sues Diner for negligence, can offer B‟s signSomeone else’s measures…NOT J‟s subsequent remedial measure…don‟t want someone to be punished for doing a prudent thing [J didn‟t do the prudent thing, the neighbor B did] = NO 407 ground to exclude… II. Probative value NOT likely to be outweighed by unfair prejudice [NO 403 ground to exclude] Could be excluded as inadmissible hearsay: out of court statement by a declarant offered to prove the truth of the matter asserted vi. 6-6: Tank of propane in possession of P exploded, injuring him…P sued supplier of gas on strict products liability…P alleged gas contained insufficient quantity of special odorizing agent with resulted in the explosion…trial, P offered brochure prepared by D after accident that explained odor of petroleum gas may fade with time and if odor faces, gas should be replaced…brochure subsequent remedial measure?? YES = inadmissible under federal; admissible in California!! 1. What if?? Brochure prepared before accident, but wasn‟t distributed until after accident…can argue that might NOT distribute if no accident 2. What if?? Distributed, but waiting in office to be unpacked 3. Remedial measures undertaken prior to event in question = will be allowed…however, if there are significant steps that still need to be taken with regard to the remedial measures, will be excluded a. Steps taken BEFORE injury/event = can NOT be attributed to injury/event b. Jury has right to know that they had notice of defect before and their timely notice of such = NOT making improvements after they become aware of problem!! COMPROMISE and OFFERS to COMPROMISE; PAYMENTS of MEDICAL EXPENSES; INADMISSIBILITY of PLEAS: a. 408: Compromise and Offers to Compromise—Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. i. NOTE: 408 Amendments [pg. 184] come into effect on 12/1/06 1. Impeachment 2. Use in criminal cases ii. EXCLUDES: 1. Excludes civil settlement or offer to settle in civil case to prove liability of claim 2. Excludes conduct or statements made in negotiations 3. Dispute regarding liability and amount of claim iii. Limitation: 1. Statements made BEFORE there is a dispute do NOT fall within 408 2. Does NOT exclude evidence that was otherwise admissible if used in settlement negotiations [E.g.—can‟t exclude expert opinion just because used in settlement] iv. Negotiation Settlement Statements are used: Can be used… 1. To show witness bias [E.g.—settles with 2 D and is now testifying against 3rd D] 2. In connection with undue delay 3. To prove obstruction by civil or criminal justice 4. Impeachmentoffer statement in settlement negotiation at trial a. However, in Amendments propose that it is NOT to be used as impeachment [12/1/06] b. UNLESS Congress acts v. Justification—want to encourage settlement [people be open and honest]; probativity of statements [might just want to get rid of claim] b. 409: Payment of Medical and Similar Expenses—Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. i. Excluding offer to pay…any collateral statements made with offer to pay are fully admissible [doesn‟t even have to be a dispute] ii. Justification—encouraging good Samaritan c. 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements—Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: i. (1) a plea of guilty which was later withdrawn; ii. (2) a plea of nolo contendere; iii. (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or iv. (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. v. However, such a statement is admissible 1. 2. d. (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or 2. (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel. vi. Scenarios covered by 410: exclude evidence when… 1. Guilty plea that is withdrawninitial guilty plea can NOT be offered against him 2. Nolo pleaNOT admission, just saying that NOT going to fight it [probative value is so minimal and danger jury will misconstrue is so high] 3. Rule 11 statements regarding (i) guilty plea that is entered, when withdrawn; (ii) Nolo Plea a. Rule 11 Statements: In connection with guilty plea i. Court must make an independent determination that the facts justify a conviction…require judge place D under oath and ask D what he did ii. D has to state in own words what he did that resulted in charge where he pleaded guilty [D must establish guilt] iii. Words taken in connection with guilty plea, that D is later allowed to withdraw is NOT admissible 4. Plea discussion with prosecution where plea fails vii. Exceptions to exclusion: 1. D introduces the statement and fairness requires more of the statement to be offered to keep it from being misleading a. D opens the door b. Prosecutor offers enough to keep it from being misleading 2. If there is a subsequent criminal proceeding for perjury or false statement a. E.g.—D pleas guilty and makes statements under oath saying that he robbed the bank and is later claimed that he did NOT rob the bank i. At bank robber trial can NOT offer as impeachment ii. Later prosecuted for perjury because of this statement of subsequent statement can offer against them = MUST wait until later trial! b. Can NOT offer for impeachment viii. E.g.—D calls and says, “I want to bargain”…come and D and FBI agents there, give Miranda rightsmakes incriminating statements, then FBI says they are NOT going to offer a plea bargain…goes to trial 1. When D attorney called = talked about plea deal…though that until they said no deal 2. NO prosecuting attorney is present…and Miranda rights have been read, therefore NO plea deal is going to arise = argument that NOT excluded 3. In some jurisdictions can delegate bargaining authority to law agents = more likely to accept 410 exclusion 4. Both sides have arguments = depends on who judge thinks is more persuasive ix. US v. Metzanato—410 prohibitive use can be waived by D [can‟t use for impeachment, but can be waived] Problems: i. 6-7: B owed A $500…when B saw A hanging out in front of the local convenience store, B asked A “If I give you $350 and a tick to concert, would that be adequate settlement? I don‟t have full $500 I owe you and won‟t have by agreed date”…if A does NOT accept B‟s offer, can A introduce B‟s statement in later trial for payment of $500NO dispute as to amount and NO dispute as to validity of the claim…because 408 specifically requires that there be a dispute as to validity or amount, and there is NO dispute here = 408 does NOT apply and it is admissible ii. 6-8: J crashed into A and knocked him over…as A writhes in pain, J states „I am really sorry, I was preoccupied and collision was all my fault. If you don‟t bring suit, I‟ll be more than happy to pay medical expenses, even ripped pants and any embarrassment this caused you.” A replied „NO‟ and filed suit…any of J‟s statements admissible at trialNO dispute has arisen at this point…pre-dispute, so 408 does NOT apply; however 409 would exclude the offer for payment of medical expenses [more specific than 408] = at time statements were made there was NOT yet a dispute, so 408 does NOT apply!! iii. 6-9: J sued by business partner, D…D claimed J understated profits by $1 million over 5 years and siphoned off partnership money for personal use…during negotiations with D, J admitted to taking some money to pay gambling losses, J claimed he did NOT owe D anything because D swindled him at time formed partnership, therefore money he took was rightfully his 1. If J was incorrect in belief money he took was rightfully his, can D offer J‟s statements at trialNO…would go to validity of claim and amount of claim [kept out under 408] 2. If J produced all tax forms relating to years in question and betting slips verifying losses during negotiations, could they still be offered at trialAdmissible because otherwise discoverable…NOT shielded just because brought in under settlement arrangement 1. iv. v. vi. vii. If J agreed he owed D $1 million, but offered to pay $500,000 to have suit dropped, any factual admissions made in conjunction with offer admissibleSince 408 requires a dispute regarding amount of validity, would be ADMISSIBLE!!! 4. If subsequent criminal proceeding initiated against J for failure to pay income taxes on monies in question, would statements made during previous settlement negotiations be admissible in subsequent criminal casequestion if admitted under old rule…but under amendment (pg. 184)(2)…specifically allows any statements made in connection with government regulatory to be used [statements made 408 are NOT admissible in criminal trials] a. Theory is that if negotiating with SEC, should e aware that statements could be used against you in subsequent criminal cases b. But if negotiating with another P = will be excluded!! c. RULE: 408 excludes in civil and subsequent criminal proceedings… i. Exception: If dealing with government regulatory agency, statements will NOT be excluded in subsequent criminal case (still subject to 403: probative value substantially outweighed by danger of unfair prejudice) [read advisory notes (pg. 184)] 6-10: J sued by C for damages resulting from alleged battery outside club…C and J engaged in series of discussion about settling before suit and C stated, „The only reason I hit you from behind was because you were doing a song and dance with my g-friend”…negotiations were unsuccessful…at trial, C takes stand and states „I was in club until after J left; I didn‟t know he was hurt until sirens‟…J seeks to impeach C with admission made during settlementNEW rule makes it clear that evidence is NOT admissible to impeach!!! Old 408 permitted use as impeachment 6-11: MG charged with 2 counts of breaking/entering kitchen of restaurant…day after charges filed, MG visited local police officer OG…MG and OG were social acquaintances…MG proposed to OG, „if you ditch charges, I can help you catch big time crooks. I admit I broke in, but I was hungry and wanted food‟ 1. At MG‟s trial for breaking/entering can prosecution offer MG‟s statements to OGadmitting that he broke in, 410 governs but there was NOT negotiations made with attorney for prosecuting authority [if prosecutor had delegated authority to officer, there is potential]…NO basis for assumption that there is active plea negotiation = outside 410, therefore admissible [come in as statements of party opponent under 802(d)(2)(A)] 2. Assume MG‟s friend, B, also charged with breaking/entering as aider and abetter…b agrees to testify against MG, provided hat prosecution drops charges against him…statements made by B while entering plea of guilty used by MG to impeach B on crossStatements made during guilty plea hearing are fully admissible, ONLY limitation if later withdrawn = NOT case here 3. MG unsuccessfully attempted to negotiate a plea directly with prosecutor…at trial, MG introduces some of his own statements made during plea discussion with prosecutor410 protects D, but does NOT bar D from offering own statement a. Problem is that it is HEARSAY [NOT offered as statement against party opponent], probably inadmissible hearsay [if it were admitted, the prosecution would be permitted to offer so much of other statements made during plea negotiations to make it clear] b. If D DOES offer some statements, prosecutor able to offer as much of negotiations to make it NOT misleading to jurors 4. MG offered statements made by prosecutor during their unsuccessful plea negotiationsRule is NOT that clear, but seems to be designed to protect D and nothing to preclude D from offering prosecutor‟s statements…something given to D 6-12: L sued by neighbor, M, for breaking a mirror in M‟s house…during settlement negotiations, L admitted she had been smoking pot at M‟s at time mirror broke…she denied breaking mirror…following month, L prosecuted for possession of pot at M‟s house: 1. Prosecution wants to offer L‟s prior admission during settlement negotiations regarding marijuana useUnder new rule 408…seems to prohibit [criminal case] v. old rule 408, courts did admit…when statements made collateral [smoking marijuana] to issue in dispute [mirror broken] would be admissible in some courts 2. If L pled guilty to using marijuana at M‟s house, then sued in civil action by M for breaking mirror, could guilty plea be used against her in later civil trialcould be used because 410 does NOT cover guilty pleas 6-13: D, S, charged with murdering G…during plea negotiation with prosecutor, D blurts „You guys don‟t know who you are up against! You think I killed G, but you should ask me about unsolved murder of B in next county. I have personal knowledge about that one and you are way off.‟…S subsequently charged with B‟s murder…at trial, can prosecutor offer S‟s inculpatory statements made during G plea negotiations410, perhaps admissible, but still unresolved if issues completely unrelated admissible 1. Doesn‟t say if plea negotiations resulted in guilty plea = if so would be permitted [not within 410] 2. Even if resulted in NOT guilty plea = still argument that collateral and should be admissible 3. III. LIABILITY INSURANCE: a. 411: Liability Insurance—Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. i. Limits use of evidence of insurance upon the issue of whether person acted negligently or wrongly ii. Rationale: 1. NOT particularly probative as to fault [E.g.—fact that person buys insurance could be argued that person is more reckless or person is more prudent for obtaining (argued BOTH ways)] 2. Subject to misuse by jurors [If find out insured, fail to award damages] b. Problems: i. 6-14: D sued for injuries resulting from car accident…D did NOT have car liability insurance, he „forgot to buy some‟…at trial, D testified…. 1. D‟s attorney asked D how careful a driver was her, then P objectedinadmissible character evidence in civil trial [sustained] 2. D‟s attorney asked what was motive to be careful while driving, P objected, D proffered that D will say „I‟m careful because I don‟t have insurance, and knew personally liable‟…P objectedbeing offered to show careful because he forgot to buy insurance [NOT likely at fault]…NOT admissible under 411 to show he is a careful driver [can NOT offer insurance or lack or insurance to show liability] 3. Is evidence admissible to rebut implicit assumption that because many people have car insurance, D likely had insurance toopurpose of rule is to keep jury from considering whether guy has insurance in deciding liability or amount of claim…he is trying to let jury know that he does NOT have deep pockets = offered for prohibitive purpose, NOT admissible to rebut assumption that he has insurance because would defeat purpose of the rule ii. 6-15: P brought suit against bungee-jumping facility in Mich….P jumped and was injured when rope broke, P offered evidence that D was insured, corroborating claim that D operated business with lackadaisical attitude of „Why worry? Be happy,‟ the facility‟s unofficial mottoNOT probative of caution or lack thereof…NOT admissible under 411 iii. 6-16: Defense witness, S, testified about position of 2 cars involved in car accident at intersection…on cross she was asked by bumbling attorney whether she was employed by D‟s insurer…D objected to question and court sustainedNOT offering insurance to show liability, fault, wrongfulness of conduct, but to show that witness might be biased as employee = admissible, therefore should be overturned on appeal