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Evidence Chapter 5 Other Forbidden Inferences Outline

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Table of Contents
Chapter 5. Other Forbidden Inferences....................................................................................1
A. Subsequent Remedial Measures....................................................................................................4

1. Civil Settlements.............................................................................................................................4

2. Criminal Settlements.......................................................................................................................7
C. Medical Payments and Liability Insurance......................................................................................9
A. Introduction.................................................................................................................................10
B. Character for Untruthfulness.......................................................................................................11

1. In General.....................................................................................................................................12

2. Prior Criminal Convictions.............................................................................................................14 a. Admissible and Inadmissible Convictions...................................................................................................14 b. Preserving Claims of Error..........................................................................................................................18

C. Prior Inconsistent Statements......................................................................................................19
D. Bias and Incapacity......................................................................................................................26
E. Specific Contradiction...................................................................................................................28
F. Rehabilitation...............................................................................................................................32

1. In General.....................................................................................................................................32

2. Character for Truthfulness............................................................................................................33

3. Prior Consistent Statements.........................................................................................................36

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 5. Other Forbidden Inferences
Introduction
 Hearsay and character evidence rules share a similar structure: each forbids a certain kind of proof used for a certain kind of purpose. This chapter includes various other rules with the same structure.
o Evidence of subsequent remedial measures typically inadmissible to prove fault.
o Settlement efforts generally cannot be probed to show the merit or weakness of a civil claim or criminal charge.
o Humanitarian payments typically are inadmissible to demonstrate liability.
o Presence of absence of liability insurance generally cannot be proved to show fault or lack of fault. A. Subsequent Remedial Measures
FRE 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 measures is not admissible to prove:
o negligence;
o culpable conduct;
o a defect in a product or its design; or

a need for a warning or instruction.
 But the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.
Advisory Committee Note to FRE 407
 Rule rests on two grounds:
o Conduct is not in fact an admission, since it is equally consistent with injury by mere accident or contributory negligence. (But under a liberal theory of relevance, this would not justify exclusion,
since the inference is still possible.)
o Social policy of encouraging people to take steps in furtherance of added safety.
 Rule only excludes evidence when offered as proof of negligence or culpable content, i.e. admitting fault. Other purposes are allowable:
o Showing, if controverted, ownership or control, existence of a duty,
feasibility of precautionary measures. Use for impeachment also permissible.
 Alternative purpose must be controverted, so evidence is automatically excluded unless a genuine issue is present. This allows the opposing party to lay the groundwork for exclusion by making an admission.
Clausen v. Storage Tank Development Corp., 21 F.3d 1181 (1st Cir.
1994)
Facts:
 In 1989, P fell while working on job site owned by D1 and occupied by
D2. Ds filed third-party complaint against P's employer, E.
 D1 complaints of allowance of evidence that, in 1992, at D2's request,
replaced ramp where P fell with set of stairs.
 D1 failed to timely object, so Court here reviews decision only for plain error.
Opinion (Campbell):
 TC's decision to admit evidence was not plain error. 

FRE 407 proscribes admission of evidence of subsequent remedial measures to prove negligence or culpable conduct, but not when offered to prove another purpose, such as control.
o Parties agree control of ramp area was material issue. And parties dispute who was in control.
TC committed no plain error in FRE 403 analysis.
o D1 argues evidence was inadmissible under control exception to
FRE 407 because it failed to satisfy independent requirements of
FRE 403; evidence from three years later does not prove who controlled the ramp at the time of the accident. But D1 did not preserve its right to argue the merits, and does not demonstrate plain error in TC believing the evidence carried at least some probative weight.
o D1 also argues evidence was prejudicial. But Judge offered proper limiting instructions; while not always effective, the instructions here were not plain error.

In Re Asbestos Litigation, 995 F.2d 343 (2d Cir. 1993)
Facts:
 D appeals from wrongful death judgment awarded to P, whose husband died from asbestos manufactured by D.
 D appeals TC's admission of evidence D placed warning on product after decedent's last exposure.
o TC held P's use of label evidence focused on statement no warning labels were placed on the products at the time of decedent's exposure, not that the labels were placed on the products later because D recognized the danger.
o P argues this evidence was used to show feasibility.
Opinion (McLaughlin):
 The warnings were subsequent remedial measures, inadmissible under
FRE 407.
o Feasibility is not a magic word. Defendant must first contest the feasibility of a warning before the subsequent warning would become admissible.
o Feasibility here was not an issue here, since D instead contested the product was defective without a warning or required a warning.
Diehl v. Blaw-Knox, 360 F.3d 426 (6th Cir. 2004)
Facts:
 In 1999, P was injured working on a road crew for IA construction company (not party to suit). P was working behind road-widening vehicle when it backed up over him. P sued D, which manufactured vehicle in

1970. P argued product was defective because it lacked bumper or wheel enclosure, back-up alarm was inaudible, and it lacked proper warnings.
 P sought to introduce testimony by IA mechanic that shortly after accident, IA modified vehicle by adding safety features.
o TC ruled evidence subsequent remedial measure inadmissible under FRE 407; and alternatively excluded under FRE 403, on the basis evidence of measures in 1999 would confuse jury, whose focus should be on whether vehicle was safe in 1970.
Opinion (Smith):
 TC erred in excluding evidence under FRE 407.
o FRE 407 rests on policy of encouraging manufacturers to make improvements for greater safety. The policy is not implicated where evidence concerns remedial measures taken by entity not party to lawsuit.
 Admission of remedial measures by non-party will not expose non-party to liability, and therefore will not discourage nonparty from taking measures in first place.
 Text of FRE 407 doesn't say this, but Advisory Committee
Note makes it clear, incorporating conventional doctrine.
 TC abused its discretion in excluding evidence under FRE 403.
o TC's explicit balancing analysis under FRE 403 should only be disturbed if irrational or arbitrary.
o TC reasoned evidence would create danger of unfair prejudice,
confusion of issues, and misleading jury, since evidence was from 1999 and jury's focus should be on date of manufacture.
 Still, implementation of remedial measures is consistent with inference that older product was defective.
 May be other reasons for changes in design: to avoid another injury, as sort of admission of error, because better method was discovered, or to implement idea or plan conceived before accident.
 Alternative designs may indicate product was unreasonably dangerous, but only if they were available at the time of manufacture.
o Instant case presents few risks discussed.
 State of art is not an issue, because the fix involved merely welding a bumper.
 No dispute that the redesign was done for the sole purpose of preventing such accidents.
 (Evidence of measures taken by D prior to event causing injury do not fall within exclusionary scope of FRE 407, even if they occurred after the manufacture of design of the product.)
 Error was not harmless. Reversed and remanded for new trial. A. Subsequent Remedial Measures

1. Civil Settlements
FRE 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 to impeach by a prior inconsistent statement or a contradiction:
o (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; and

(2) conduct or a statement made during compromise negotiations about the claim--except when offered in 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.
 (b) Exceptions. The court may admit this evidence for another purpose,
such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Advisory Committee Note to FRE 408
 Generally, evidence of an offer to compromise a claim is not receivable in evidence as an admission of validity or invalidity of the claim.
 Two grounds justifying exclusion:
o Evidence is irrelevant, since offer may be motivated by desire for peace rather than concession of weakness of position.
o Policy favoring compromise and settlement of disputes.
 Rule is ordinarily phrased in terms of offers to compromise, it also applies to completed compromises.
o This situation ordinarily only occurs when a party to the present litigation has compromised with a third party.
 The common-law version of this rule was undermined by its inapplicability to admissions of fact made in the course of compromise negotiations unless hypothetical, stated to be "without prejudice" or so connected with the offer as to be inseparable from it.
 Underlying policy considerations do not come into play when effort is to induce creditor to settle an admittedly due amount for a lesser sum,
hence the rule requires the claim be disputed as to either validity or amount.
United States v. Davis, 596 F.3d 852 (D.C. Cir. 2010)
Facts: D served as treasurer for fraternity, convicted of stealing $218k from fraternity.
 Over D's objection, TC allowed testimony that W, an employee of fraternity, confronted D about $29k in checks made to cash, and D said to W, "Can we just split this $29k and make this situation go away?" to which W responded, "The amount was over $100k, if you want to negotiate you need to talk to the fraternity president.
Opinion (Randolph):
 FRE 408 excludes evidence of settlement offers and negotiations for proving liability for, or invalidity of, or amount of a claim.
o D offered to compromise a disputed claim, and P here introduced the evidence to prove D's guilt/liability.
o Offers to settle are excluded by the rule even if no negotiations follow.
 The rule is meant to promote settlements; if one party attempts to initiate negotiations with a settlement offer, the offer is excluded from evidence even if the counterparty responds: "I'm not negotiating with you."
 FRE 408 also bars statements made in compromise negotiations.
o D's other statements to W ("what would it take to make this go away?") were of this sort.
o W understood this exchange as a compromise negotiation.
 Advisory committee note states "effort to buy off prosecution or prosecuting witness in a criminal case is not within the policy of the rule of exclusion." But D was not charged with obstructing a criminal investigation or attempting to do so.
o Offer to split $29k was not an attempt to bribe [supposedly].
o An excessive settlement offer may be seen as an attempt to buy off complaining party.
o Most importantly, P did not introduce conversation for purpose of proving effort to obstruct criminal investigation. It sought to prove consciousness of guilty, which constitutes "liability" under FRE
408(a).
 TC abused discretion in permitting testimony. Vacated and remanded.

Ramada Development Co. v. Rauch, 644 F.2d 1097 (5th Cir. Unit B 1981)
Facts:
 P signed a contract agreeing to build a hotel for D. D occupied the hotel and refused to make payments. P filed suit, and D counterclaimed for nonperformance and negligent planning.
 Jury gave a verdict basically favorable to P.
 D challenges TC's exclusion of report of architect employed by P to study alleged defects.
o D claims he sought to introduce as part of case in chief because it confirmed most alleged defects.

TC ruled evidence inadmissible because report was tool used in unsuccessful settlement attempt. D argues that was error because rule does not exclude all evidence presented in settlement attempts and there was a lack of pre-trial understanding that the report could not be used in evidence.
Opinion (Tuttle):
 D's claim of error is without merit. TC properly held evidence inadmissible.
 FRE 408 displaced previous common-law rule.
o CL rule held admissions of fact made in negotiations were admissible unless hypothetical, stated to be "without prejudice" or so connected with the offer as to be inseparable from it.
o FRE 408 eliminates need to determine whether the statement, if not expressly qualified, falls within or without the protected area.
The question under the rule is whether the statements or conduct were intended to be part of the negotiations toward compromise.
 Report falls squarely within the exclusionary scope of FRE 408, since it represents a collection of statements made in the course of an effort to compromise.
o D argues FRE 408 does not require exclusion of evidence otherwise discoverable merely because it has been presented in the course of compromise negotiations; this is intended to prevent one from immunizing admissibility of documents otherwise discoverable merely by offering them in a compromise negotiation.
 But this does not apply to documents which would not have existed but for the negotiations.
o D argues report was offered to prove not only existence of defect but also P's notice of alleged defects.
 But the court did not abuse its discretion by balancing this against the need to avoid discouraging settlement negotiations, since notice could have been proved by other means.
Carney v. American University, 151 F.3d 1090 (D.C. Cir. 1998)
Facts:
 P was black woman serving as acting dean of students for D. D passed P
over for promotion, then dismissed her as part of downsizing.
o After losing job, P notified D she intended to sue. Around the same time, question arose as to whether P might be entitled to additional three months' severance on top of existing package.
 P filed suit claiming D discriminated on basis of race when it declined to select her for promotion, and again when it fired her. P also claimed D
withheld additional severance as retaliation.
o Regarding retaliation claim, D argued first it crafted the severance package before it knew P would sue, and second all evidence of

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