Evidence class 3

1. Evidence class 3 Rules 407-411 Begin Character Evidence

2. Review • Relevance (Rule 401) - is the evidence offered to prove a fact of consequence (something going towards any element of claim/damages); and does it have ANY tendency to make that fact of consequence more or less probable - VERY BROAD STANDARD

3. Review • Rule 403 (balance on 401) – Is the probative value of the evidence SUBSTANTIALLY OUT WEIGHED by the risk of: unfair prejudice, confusion of the issues, misleading the jury, wasting time. Balance here is TOWARD admissibility but it is at least a check on the wide latitude allowed by R. 401

4. Practice Pointer • Rule 403 comes into play in almost all the rules on relevancy – even the special relevancy rules; thus with most special relevancy rules, even if it is admissible under one of those rules, it may still be kept out under R. 403 (although this rarely happens – it is another argument to make)

5. Cameron v. Otto Bock p. 180 • Factual summary: a man fell and injured himself when the pylon in his artificial leg broke; he sues alleging negligent design; the defense is that someone else (the prothetisist who put the leg in place) was at fault b/c he screwed it in too tightly; plaintiff responds that the manufacturer should have given better directions about how to screw it in)

6. Cameron v. Otto Bock cont’d • What is the contested evidence? • What are ways p. tried to get around subsequent remedial measure rule

7. Rule 407 – Break into component parts – what do you have to show • 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

8. Analysis of R. 407 problem • AFTER Injury or harm caused by an event (i.d. injury/i.d. event) • Measures are taken (i.d. measures) • That would have made injury or harm less likely to occur (NOTE the timing – the measures MUST have been taken AFTER the injury/event; also must have made injury less likely) • Not admissible to prove negli, etc.

9. Back to the burning pjs

10. Hypo #7 • 1/07 - M & J buy children’s pajamas at same sale • 3/07 - M's child wears pjs & is burned • 7/07 - M sues pj manufacturer -negligent failure to make pjs w/flame retardant • 9/07 - manufacturer changes process of making pjs - adds flame retardant • 12/07 - J's child injured • 3/08 - J sues manuf -negligent failure to make pjs w/flame retardant • 8/08 - M's trial • 11/08 - J's trial

11. 1/07 - M & J buy children’s pajamas at same sale 3/07 - M's child wears pjs & is burned 7/07 - M sues pj manufacturer -negligent failure to make pjs w/flame retardant 9/07 - manufacturer changes process of making pjs - adds flame retardant 12/07 - J's child injured 3/08 - J sues manuf -negligent failure to make pjs w/flame retardant 8/08 - M's trial 11/08 - J's trial At M's trial, M wants to introduce the 9/07 manufacturing process change to show the pjs should have been made flame retardant The manufacturer is not contesting feasibility of the change. Is the evidence of the change in the manufacturing process admissible? Hypo #7

12. 1/07 - M & J buy children’s pajamas at same sale 3/07 - M's child wears pjs & is burned 7/07 - M sues pj manufacturer -negligent failure to make pjs w/flame retardant 9/07 - manufacturer changes process of making pjs - adds flame retardant 12/07 - J's child injured 3/08 - J sues manuf -negligent failure to make pjs w/flame retardant 8/08 - M's trial 11/08 - J's trial What would your answer be if the manufacturing process had been changed in Feb. 2007? #7 cont’d

13. 1/07 - M & J buy children’s pajamas at same sale 3/07 - M's child wears pjs & is burned 7/07 - M sues pj manufacturer -negligent failure to make pjs w/flame retardant 9/07 - manufacturer changes process of making pjs - adds flame retardant 12/07 - J's child injured 3/08 - J sues manuf -negligent failure to make pjs w/flame retardant 8/08 - M's trial 11/08 - J's trial In a motion in limine, the judge rules that the 9/07 change isn't admissible. However, during trial, the defendant's expert gets on stand and says, "look in 2007, the technology just wasn't around - we couldn't make pjs w/flame retardant w/out making them so scratchy that no one would buy them"

14. 1/07 - M & J buy children’s pajamas at same sale 3/07 - M's child wears pjs & is burned 7/07 - M sues pj manufacturer -negligent failure to make pjs w/flame retardant 9/07 - manufacturer changes process of making pjs - adds flame retardant 12/07 - J's child injured 3/08 - J sues manuf -negligent failure to make pjs w/flame retardant 8/08 - M's trial 11/08 - J's trial At J's trial, J seeks to introduce evidence of the change in the manufacturing process to show pjs should have been flame retardant - manufacturer is not contesting feasibility. Is the evidence admissible? NOTE: 403 is a backup #7 cont’d

15. 1/07 - M & J buy children’s pajamas at same sale 3/07 - M's child wears pjs & is burned 7/07 - M sues pj manufacturer -negligent failure to make pjs w/flame retardant 9/07 - manufacturer changes process of making pjs - adds flame retardant 12/07 - J's child injured 3/08 - J sues manuf -negligent failure to make pjs w/flame retardant 8/08 - M's trial 11/08 - J's trial Assume manuf of M and J's pjs did not change their process, but after reading about M's injury in a trade journal, another manuf changed process b/c it believed that the non-flame retardant pjs were too dangerous - is this evid admissible to prove pjs weredangerous - #7 cont’d

16. More hypos – not in handout ?s • What if government had forced the manufacturing change - could M. then get it in? • What if manufacturer argued it contracted out the manufacture of the product to a company in China and it did not control the way the product was manufactured. In that instance, would a subsequent change in the manufacturing process required by the American company be admissible?

17. Rule 408(a) – Evidence of Compromise & Settlement • (a) Prohibited uses: Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: • (1) furnishing or offering or promising to furnish- or accepting or offering or promising to accept -- a valuable consideration in compromising or attempting to compromise the claim; and • (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative or enforcement authority.

18. 408(b) • (b) Permitted Uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice, negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution • NOTE – LOOK TO G&W NOT THE TEXTBOOK FOR MOST RECENT VERSION OF THE RULE!!!!

19. policy • What’s the policy reason underlying Rule 408 on settlement negotiation in civil cases

20. Hypo – how should the court rule? • Al, an ABC salesman, tells Barbara, a doctor, “our software will be able to handle all of your insurance billing without a glitch.” Shortly after Barbara switched to ABC’s billing software, the glitches began to happen and within months, she was not collecting any money, patients were being double-billed and leaving her office because they thought she was trying to defraud them, and insurance companies began investigating her to see if she was fraudulently submitting claims. Barbara called Al to complain about all this. Al told her, “don’t worry, ABC will take care of you; just tell us the damages you are claiming and we will pay the bill." ABC did not pay the bill Barb submitted and she filed suit for breach of implied warranty of merchantability. ABC objects to admissibility of Al’s statement (note – Al’s authority to make the statement is NOT the basis of their argument).

21. Hypo #2 • Adam, the driver of car one, and Bonita, his passenger, are struck by a car driven by Cleo. Bonita settles her claim against Cleo. Adam and Cleo have sued each other, each claiming the other was negligent. At the trial of Adam v. Cleo: • a. May Adam call Bonita as a witness to testify that she settled her claim with Cleo to prove that by settling with Bonita, Cleo admitted he was at fault? • b. If Cleo calls Bonita as an eyewitness to the wreck, may Adam cross-examine Bonita on the fact that she settled her claim with Cleo?(query – what is the evid offered to prove?)

22. hypo • In settlement negotiations, Susie's lawyer said, "yes, it's true Susie, my client had a few beers that evening before driving." Now it's time for trial and opposing counsel wants to get into evidence the fact that Susie had been drinking before driving; can Susie's lawyer object to the introduction of evidence Susie had been drinking on the ground that he talked about it during settlement negotiations?

23. hypo • Assume Susie participated in the settlement negotiations and she admitted she had had a few beers that evening; then at trial, she gets on stand and denies drinking. May her statement made during settlement negotiations be used to impeach her? • Why do we have this rule? • NOTE: LOOK TO G&W NOT THE TEXTBOOK FOR THIS ONE

24. hypo • Assume that the defendant in a civil wrongful death trial (negligence via drunk driving) settles the claim. Now, it’s time for the criminal DUI trial. Can the state introduce into evidence that the defendant settled the civil claim to help prove he is guilty of a DUI? • Note; LOOK TO G&W NOT CASEBOOK

25. hypo • The Securities and Exchange Commission (SEC) brings an action against John Doe for securities fraud. During settlement negotiations, Doe admits he may have engaged in some fraudulent activity, such as fixing the corporate books. He settles with the SEC. • a. Can Doe’s admission during settlement negotiations with the SEC be used against him in a later criminal action to prove Doe engaged in fraud? • b. Can the fact of Doe’s settlement w/the SEC be used against him in a later criminal action to prove Doe engaged in fraud? • C. (not in take home hypos) – Can either of the above be used in a civil suit against Doe by the company’s stockholders?

26. Exceptions for gov’t agency negotiations • How does the exception for negotiations with gov’t agencies and subsequent use in criminal cases comport with the general policy rule underlying R. 408? • What can you do to avoid this problem?

27. More ?s & info • Why allow statements in negotiations but not the fact of settlement? • Is it an absolute rule that the statements come in or can 403 be used to prohibit their admission? • NOTE: party can’t offer their own statements or offers either

28. What is excluded under R. 408 – on your own do this exercise • A. actual settlement with private party? Civ -yes Crim -yes • B. Actual settlement with gov’t agency? Civ Crim • C. Offer to settle with private party? Civ Crim • D. Offer to settle with gov’t agency? Civ Crim • E. Statements/conduct during negotiations w/private party? Civ Crim • F. Statements/conduct during negotiations with gov’t agency? Civ Crim

29. Rule 409 • 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. What’s the policy underlying this rule?

30. 408 v. 409 • What are the main differences between Rules 408 and 409? • How do those differences comport with the policy reasons for R. 409?

31. Arnold v. Owens p. 199 • Contested evid • Issue/holding/reasoning • Note: what would plaintiffs have to show to make it admissible?

32. hypo • Assume that the plaintiffs in a civil suit want to admit the following statement made to them by the defendant driver. “I am so sorry about what happened to your son. I did not mean to hit him. Although I am a little strapped for cash, I will help you all that I can in terms of his medical bills.” What is the statement offered to prove? Is it admissible?

33. Hypo • Assume the plaintiffs in a civil case (a drunk driver hit a pedestrian) want to admit the following statement made to them by driver after his arrest. “I would like to settle this case and get it behind me as soon as possible. I need to focus on getting my career back on track because I will soon have to start paying my children’s college expenses. Please make me a reasonable offer and I will see what I can do in terms of getting my insurance company to pay you.” Is the statement admissible?

34. RULE 410 • 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: • (1) a plea of guilty plea which was later withdrawn; • (2) a plea of nolo contendre [no contest – I do not contest these charges] • (3) any statement made in the course of any proceedings under Fed. R. Crim. P. 11 or comparable state rules; [court hearings to accept the plea] • (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.

35. Rule 410 cont’d • However, such statement is admissible: (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 to be considered contemporaneously with it; or (ii) in a 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.

36. policy • What is the policy reason for Rule 410?

37. U.S. v. Udeagu p. 201 • What’s the contested evidence • What’s the issue • What’s the holding/reasoning

38. Hypo • Assume that during plea negotiations with the district attorney in a drunk driving case hit and run case, the defendant told the prosecuting attorney, “Yes, I knew I had hit someone. I was just scared and I ran.” No plea results and it is time for trial. The state, in its case-in-chief, wants to introduce the defendant’s statement. May it do so?

39. hypo • What if the defendant takes the stand and testifies, “ I had no idea I had hit someone”. May the state introduce his statement made during plea negotiations, even if it did not (or could not) do so during its case-in-chief?

40. hypo • Could the plaintiffs, in a civil trial, introduce the statement the defendant made during his plea negotiations (same facts – no plea resulted)?

41. hypo • Assume that rather than making the above statement to the prosecuting attorney, the defendant (after being properly Mirandized), said to the arresting officer at the police station, “Look, I’ll tell you what happened if you promise to help me out with the district attorney.” The officer will testify that he told the defendant, “I’ll do what I can.” Then, the defendant made the statement noted above. At the criminal trial, the prosecuting attorney, in its case-in-chief, wants to introduce the statement the defendant made to the police. Make the arguments for and against admissibility.

42. hypo • During plea negotiations, the defendant admits he was at fault and pleads guilty. In the civil case, can the plaintiff use the Defendant’s statement admitting fault that was made during his plea negotiations to prove he is liable?

43. New hypo (not in handouts) • After the plea negotiations were finalized, the defendant, Abe Money says, “oh, I also think you should look at Foxy Jones’ bank account – you will find some extra money there.” The gov’t looks at the account and does find extra money there. Jones is charged with embezzlement. At Jones’ trial the government seeks to introduce Money’s statement above? Jones objects on the grounds that the statement is barred by Rule 410. What Ruling? Would your answer change if the statement was made during on-going plea negotiations?

44. waiver • Can the defendant agree to waive the protections of 410 before beginning plea negotiations and thus allow the prosecutor to use any statements made during plea negotiations against him if no agreement is reached? Do you think this is good public policy?

45. Rule 411 • 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.

46. Bernier p. 215 • What’s the contested evid • What’s the issue/holding/reasoning

47. hypo • In a civil trial, defendant was driving a truck for ABC company. • The plaintiff alleges the defendant was negligent. To prove the defendant’s negligence, plaintiff wants to introduce this statement plaintiff made to a neighbor, “it is nice ABC has such good insurance benefits package- they even pay my car insurance. That really helps b/c I am not always the most careful driver and now I don*t have to worry as much about it”.

48. hypo • Assume that in the hypo above, the plaintiff also sued ABC corporation based upon respondeat superior. ABC denies liability, arguing the defendant was an independent contractor. The plaintiffs seek to introduce evidence that def*s insurance was paid for by ABC corporation. May they do so?

49. query • What if evidence is permissible for one purpose but not another – what do you do?

50. Intro to character evidence