This is an extract of our Specialized Relevance Rules 407 411 document, which we sell as part of our Evidence Outline - Long Outlines collection written by the top tier of University Of Virginia School Of Law students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence Outline - Long Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Specialized Relevance Rules 407-411 Evidence Tree - ROUTE OF ADMISSIBILITY
1. First: evidence must be good under R. 401: if the evidence has any tendency to make a material fact more or less probable
2. Then, evidence is admissible pursuant to 402, unless it is barred by the stated exceptions OR some other rule
3. Look for specific exclusion rules first, (i.e. 408),
4. If nothing specifically excludes, then go to 403 and determine if its prejudice outweighs its probative value
5. If it does not, then evidence is admissible.
Why Do We Have the Specialized Relevance Rules (Why not just a 403 analysis)?:
1. Replacing the special rules with multiple ad hoc decisions would expand judicial expression and could breed arbitrary and biased decision making - possibly promote forum shopping to seek out judges whose evidence views meet their needs
2. Similar to #1, loss of the special evidence rules would lead to a loss of predictability
3. Similar to 1 and 2, trial prep would grow more complex as litigants tried to anticipate all possible outcomes of the judge's discretionary weight tests
4. Would slow down litigation
5. Because criminal D's have rights that may be unprotected by ad hoc rule making, there probably would have to be different rules for criminal and civil litigation
Rules 407-411, In general Dual Rationales to these rules:
1. Relevance, and
2. Public Policy Relevance: A 403 judgment. The restrictions in these rules have essentially been held as a matter of law that their probative value is outweighed by their prejudice. Policy (in instances whether it may be unclear whether a piece of evidence falls within a particular rule, address the policy concerns!): these rules look like privileges which have no relevance or reliability-based rationale; they simply prioritize other values or purposes entirely.
Subsequent Remedial Measures (407) Rule 407. Subsequent Remedial Measures THE SUBSEQUENT REMEDIAL MEASURES MUST BE TAKEN BY THE DEFENDANT - EXCLUDING REMEDIAL MEASURES OF OTHERS WOULD NOT PROMOTE OR HINDER THE POLICY OF ENCOURAGING PRECAUTIONS When measures are taken that would have made an earlier injury [time of injury, not purchase or anything else is what matters] or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: Measures that were o Negligence; taken before are not o Culpable conduct; subject to the o A defect in a product or its design; or restrictions of 407. o A need for a warning or instruction. But the court may admit this evidence for another purpose, such as (not exhaustive, anything other than the forbidden purposes is allowed) impeachment or-if disputed [if conceded, can't admit]-proving ownership, control, or the feasibility of precautionary measures.Why is such excluded?: Later remedy is often very weak evidence of negligence, and we want to encourage people to make things saferMaine and R.I. ALLOW such evidence that would normally violate 407. However, 403 most likely still applies
Tuer v. McDonald: Decedent's wife sued after her husband was killed by failure to put him back on a particular drug. After the death, the hospital took a remedial measure and changed the prodecure in which they administer the drug in a situation similar to P's husband's. P wanted to submit such evidence of the remedial measure to prove that such action was feasible at the time of her husband's death, and two impeach the testimony of the Dr. who said he thought it would have been "unsafe" to re-administer the meds. Two main issues in the case, what feasibility means and whether there is grounds for impeachment?
Feasibility: Dispute essentially over whether feasibility in this context means whether it was possible to re-administer the meds, or whether the Dr. thought it was reasonable at the time. Big takeaway: feasibility is uncertain as to its meaning, make the argument both ways with a restrictive/narrow interpretation if you have a murky feasibility issue. Court ultimately rejected the "possible" notion and sided more with a "reasonable" standard, but neither is really disputed- the Dr. knew readministration was possible, he just did not think at the time the risks were worth the benefits. Impeachment: Court narrowly construes what counts as impeachment. Court rules that the fact that the protocol was changed following the death in no way suggests that the Dr. did not think his judgment call was appropriate at the time. In order to impeach him, there would have to be evidence to support that he did not think it was unsafe at the time of administration, what he thinks now does nothing to impeach a prior statement.
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