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  1. Definition and FRE 403 General Exception

    Evidence is relevant if it has any tendency to make a material fact more or less probable than would be the case without the evidence. (FRE 401).

    Basic Rule

    All relevant evidence is admissible.

    General Exception (FRE 403)

    …unless the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations:

    • (1) Unfair Prejudice
    • (2) Confusion (confusion of issues; misleading jury)
    • (3) Waste of Time (undue delay, waste of time, unduly cumulative)

    Judges have wide discretion to balance probative value, so it’s difficult to formulate MBE questions.
  2. Specific Policy-Based Exclusions
    Liability Insurance (FRE 411)

    Subsequent Remedial Measures (SRMs) (FRE 407)

    Settlements in Civil Cases (FRE 408)

    Offer to Pay Hospital or Medical Expenses (FRE 409)

    Pleas and Plea Discussions in Criminal Cases (FRE 410)
  3. Specific Policy-Based Exclusions
    Liability Insurance (FRE 411)
    Evidence that a person has (or does not have) liability insurance is inadmissible for the purpose of proving fault or the absence of fault.

    …but, may be used for other relevant purpose, including:

    • (1) proof of ownership or control if that issue is controverted; or
    • (2) impeachment of a witness
    • (e.g. D contends he doesn’t own property; homeowner’s insurance relevant to show that he does).
  4. Specific Policy-Based Exclusions
    Subsequent Remedial Measures (FRE 407)
    =Repairs, design changes, or policy changes taken after an accident that could have prevented the accident.

    SRMs are inadmissible to prove wrongful or bad behavior:

    • (1) negligence;
    • (2) culpable conduct;
    • (3) design defect;
    • (4) need for warning.

    But, admissible for other purposes, including:

    • (1) ownership;
    • (2) control;
    • (3) feasibility (of the posited safer condition)…

    if controverted!

    SRMs are admissible in strict liability PL actions for manufacturing defects (not design defects).
  5. Specific Policy-Based Exclusions
    Settlements in Civil Cases (FRE 408)
    If there is a disputed claim, then evidence of the following is inadmissible:

    • (a) settlements;
    • (b) offers to settle; or
    • (c) statements made in settlement discussions,

    But, admissible for other purposes, especially impeachment on the ground of bias.

    Disputed Claim Requirement (comes up a lot)

    The ban only applies if, at the time of the discussion, there is a claim (a demand of some kind) and that claim is disputed by the other side (either as to validity or amount).

    • (Claim. immediately post-accident, D offers to settle with P for $100k. Offer is admissible because there was no claim at the time of the statement).
    • (Disputed. Same, but P demands $100k and D says “fine.” Settlement is admissible because D did not dispute the claim).

    • Scope
    • -Settlements and settlement negotiations with non-parties are fully protected. Rule applies regardless of whether the settlement/talks were among parties.
  6. Specific Policy-Based Exclusions
    Offers to Pay Hospital or Medical Expenses (FRE 409)
    Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to show liability.

    Unlike the rule on settlements, this rule does not bar statements made in connection with the offer.

    (D hits P. (a) “I’ll pay your medical bills”; (b) “I’m sorry I ran the red light.” Only (a) is excluded; (b) is not covered).
  7. Specific Policy-Based Exclusions
    Pleas and Plea Discussions in Criminal Cases (FRE 410)
    Inadmissible against a defendant in a pending criminal litigation or in a subsequent civil case:

    • (1) Offers to plead guilty;
    • (2) Withdrawn guilty pleas; (admissible in subs. civil case);
    • (3) Nolo contendre pleas;
    • (4) Statements of fact during any of the above.

    • But, non-withdrawn pleas:
    • --A plea of guilty is a legal fact that is admissible against the D in subsequent litigation based on the same facts.
    • --If D wants to avoid litigation, but not plead guilty, should plead nolo contendre.
  8. Specific Policy-Based Exclusions
    • Liability Insurance
    • In: to prove fault
    • Ad: anything else (esp. ownership, control, or bias)

    • SRMs
    • In: to prove wrongful or bad behavior
    • Ad: anything else (esp. feasibility, if controverted)
    • Mfr’ing defects distinction.

    • Settlement Discussions
    • In: to prove liability
    • Ad: anything else (esp. bias)

    • Offers to Pay Medical Expenses
    • In: to prove liability
    • Ad: anything else (unlikely to see)

    • Withdrawn Pleas
    • In: for any purpose
    • Ad: None. Subsequent civil case.
Card Set:
2011-06-07 22:06:19
evidence relevance

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